SC2752

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO 38 OF 2024 (IECMS)

GOROHA INCORPORATED LAND GROUP
Appellant

V
HONOURABLE JOHN ROSSO, in his capacity as Minister for Lands and Physical Planning
First Respondent

BENJAMIN SAMSON, in his capacity as Secretary for Department of Lands and Physical Planning
Second Respondent

DR. ALPHONSE GELU, in his capacity as Secretary for Department of Provincial and Local Level Government Affairs
Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

WAIGANI: LIOSI J, ANIS J, PURDON-SULLY J
25 JUNE, 11 JULY 2025

JUDICIAL REVIEW APPEAL – Appeal under Order 10 of the Supreme Court Rules – Appeal against final decision of the National Court that refused the appellant’s application for judicial review – judicial review Court found no error of law committed by the respondents in converting a state reserved land which was held under a certificate authorizing occupancy to a special purpose lease – application of section 49 and section 52 of the Land Act – whether trial judge erred in interpretation of section 52 – consideration - ruling

Facts

The appellant’s appeal was in part against a final decision of the National Court that dismissed its judicial review application.  The main issue before us concerned sections 49 and 52 of the Land Act 1996, which was whether the respondents had complied with the process for revoking a certificate authorizing occupancy when they granted a special purpose lease over a government land, to the State through the Department of Provincial and Local Level Government Affairs.  The land concerned was described as Portion 4196, Granville, Moresby, National Capital District. 

Held:

1.	Sections 49 and 52 of the Land Act 1996 are express laws that need no further clarities.

2.	Pursuant to s.52, the State, through its entities, is the only person that shall be issued a special purpose lease over reserved Government lands.

3.	Government lands that have or possess Certificate Authorizing Occupancy (CAO) instruments, are available to the State for special purpose leases for its own purpose(s).

4.	For the State to be issued with a special purpose lease over a Government land that has a CAO, the CAO must first be cancelled or revoked.

5.	The application process for a special purpose lease under s.52 is not expressly stated under legislation; however, it is internal and not open to the public at large.

6.	The State, through the Department of Provincial and Local Level Government Affairs, had complied with the due process for grant of a special purpose lease before the Special Purpose Lease was issued over Portion 4196, Granville Port Moresby, National Capital District to it.

7.	We found no errors committed by the trial Judge in his ruling in that regard.

8.	The appeal was dismissed with costs.

Case Cited:
Kilanda v. Enga Provincial Government (2023) SC2405

Counsel
A Noki, for the appellant
R Uware for the first, second, third & fourth respondents

1.	BY THE COURT:  This was an appeal filed under Order 10 of the Supreme Court Rules (SCR).  The National Court (JR Court) decision the subject of the appeal was made on 2 August 2024 in proceeding OS (JR) No. 97 of 2022 – Goroha Incorporated Land Group v. Hon. John Rosso and 3 Ors (OS 97).  In OS 97, the appellant questioned, amongst others, whether Department of Provincial and Local Level Government Affairs (DPLLGA) followed due process when it surrendered its Certificate Authorizing Occupancy (CAO) over a state land and was issued with a new state lease called Special Purpose Lease (SPL) over the same land.  The said state land, when it used to be occupied by DPLLGA under its CAO, was described as Portion 541, Milinch Granville, Fourmil Moresby, National Capital District (Portion 541/Old lease).  DPLLGA surrendered its CAO on or about 14 November 2019, and on 3 May 2021, it was issued with the SPL.  The new description to the Title over the SPL is Portion 4196, Granville Port Moresby, National Capital District (Portion 4196/SPL).  

2.	The JR Court identified 3 main issues for consideration.  The appeal is only against part of that decision, and it relates to the first issue which was, Whether the first Defendant [Hon. John Rosso] abused his powers by granting a Special Purpose Lease over the subject land without first revoking the existing Certificate Authorizing Occupancy (CAO).

3.	The appellant was incorporated under the provisions of the Land Groups Incorporation Act 1977 (LGIA) on 1 October 2015.  It claims to represent landowners of the area where Portion 4196 is situated. 

APPEAL GROUNDS

4.	There are 2 grounds of appeal raised by the appellant.  They are related, and we summarise them as follows:

Grounds 1 and 2:

The appellant alleges the trial Judge erred when he found that the second respondent had complied with s.52 of the Land Act 1996 (LA) when he, on 3 May 2021, issued the SPL over the state land that was previously held under the CAO.  The appellant claims that because the state land was subject to the CAO at the material time, it was not available for tender and therefore the application and granting of the SPL over the land at the material time were in breach of ss.49 and 52 of the LA.

ISSUES

5.	The main issue for us to consider is (i) to interpret ss.49 and 52 of the LA, and (ii), determine whether the first, second and third respondents (respondents) breached these provisions when the CAO was revoked and when the SPL was created and issued to DPLLGA on 3 May 2021.

SECTIONS 49 & 52

6.	Sections 49 and 52 of the LA read as follows:

PART V. – RESERVATION OF LAND.

49.  RESERVATION FROM LEASE OR FURTHER LEASE.

The Minister may, by notice in the National Gazette, reserve from lease or further lease–
(a)	Government land; or
(b)	land that is the subject of a State lease,
that he considers is or may be required for a purpose specified in the notice.
……

52.  SPECIAL PURPOSES LEASE TO BE GRANTED OVER RESERVED LAND.

Where Government land is reserved from lease, the land shall not be granted on application or tender, and a special purposes lease over the land shall be issued and registered in the name of the Independent State of Papua New Guinea.

COMMON GROUND

7.	At the hearing, what was apparent to us which was not disputed are the following facts.  The land where Portion 1496 is situated is state land.  It was acquired prior to independence or before 1975.  The appellant or the landowners it claims to represent also complained in OS 97 that the land had been unlawfully acquired by the State prior to independence.  However, the primary challenge in OS 97 did not concern how Portion 1496 had been unlawfully acquired by the State in the first place from the purported landowners of the area with the aim to overturn or reclaim back the said land.  The main purpose of OS 97 was to overturn the grant of the SPL and allow the land to revert to state land presumably under its earlier status as Portion 541 under the CAO. 

8.	Also not in dispute were the actions that had been taken by DPLLGA in surrendering its CAO and its application to the first and second respondents to grant the SPL.  We refer to the affidavit of Joseph Warus filed 6 September 2023 (which is un-numbered in the unpaginated Appeal Book).  Mr. Warus gave evidence for the second respondent in OS 97.  He stated, amongst others, and we paraphrase and summarise them as follows:

•	Portion 1496 or the state land was acquired before independence;
•	Portion 1496 was previously held by DPLLGA under the CAO and it was described as Portion 541;
•	The CAO was issued on 1 November 2017 by the then Minister for Lands and Physical Planning Hon. Justin Tkatchenko to DPLLGA;
•	In 2017, DPLLGA wrote to the Department of Lands and Physical Planning (DLPP) where they requested DLPP to revoke the CAO and to grant a special purpose lease;
•	On 31 October 2019, the State, through DPLLGA, applied for a special purpose lease with the DLPP;
•	On 14 November 2019, the first respondent published in the National Gazettal No. G918 of 2019, the Revocation of Setting Aside, that effectively ceased or cancelled Portion 541 and the CAO;
•	DPLLGA received formal notification from the Land Board on 14 November 2019 to attend the Land Board meeting No. 03/2019 where the Board would deliberate on DPLLGA’s application for a special purpose lease;
•	The meeting was held as scheduled, and on 3 May 2021, the SPL was granted to the State through DPLLGA.

9.	These facts were not contested by the appellant in OS 97 and in the present appeal.

CONTENTION

10.	However, the appellant’s contention is this.  It argues that the existence of the CAO over Portion 541 at the material time, by law, meant that the land was not available for public tender or application for a lease including a special purpose lease.  It submits that the only way that DPLLGA’s application could be valid is to apply for a special purpose lease after the CAO has been cancelled.  It submits that that was not what had transpired because DPLLGA applied for the SPL whilst the CAO remained in force.  
11.	Therefore, despite the fact that the CAO was cancelled before the SPL was issued to DPLLGA, the appellant submits that the process was already defective or substantially flawed therefore it submits that the trial Judge erred when His Honour did not rule in its favour and grant the relief sought thus this Court should uphold the appeal.

CONSIDERATION

12.	What is apparent to us is that at the material time, Portion 541 was protected by s.49 of the LA.  Section 49 protects state lands that may be required for special purposes, and the Minister responsible may publish a notice to that effect in the National Gazette to preserve their statuses.

13.	Section 52, in our view, is also express.  It protects reserved government lands from being (i) made available to the public to apply for or (ii) subject to public tenders.  And the State, whether directly or through its agencies, to the exclusion of all others, is the only person that is permitted by s. 52 to be issued with special purpose leases over state lands that are reserved.  As noted by this Court in Kilanda v. Enga Provincial Government (2023) SC2405, and we quote at [15]:

15.  Section 52 of the Land Act provides that where land is reserved, no lease shall be granted either on application or tender except for a Special Purposes Lease to be issued and registered in the name of the State. The CAO ceases when the holder of the CAO relinquishes its interest in the land to the State or is otherwise revoked by the Minister responsible for Land matters. In the latter case, there is a statutory duty (section 122 of the Land Act) on the part of the Minister to give notice of the proposed action to the authorised occupant. The authorised occupant is thus accorded the opportunity to show cause.

14.	And in the present case, the authorized occupant of Portion 541 or the CAO was DPLLGA.  And the CAO was revoked before the SPL was issued over the land to DPLLGA.  DPLLGA is a state agency which held the CAO at the material time before it was revoked.  When the CAO was revoked by publication in the National Gazette, the land still remained as government or state land.  And this is where we see, with respect, the misconception in the argument of the appellant.  There was nothing stopping DPLLGA from applying for a special purpose lease whilst it held the CAO or whilst the CAO was valid, provided or so long as the CAO was cancelled before a special purpose lease was issued to DPLLGA over the same land.  We also directly confronted the appellant’s counsel to provide answers to this issue.  We asked counsel to point us to the law that expressly restricts or prevents the State from applying for a special purpose lease over a land that holds a valid CAO.  However, we did not receive a satisfactory response from counsel.  

15.	The other misconception by the appellant, in our view, was in treating or impliedly treating the application for a special purpose lease by DPLLGA as if it was a normal or regular application for a lease under PART X-STATE LEASES of the LA.  The application process by the State who intends to acquire a special purpose lease under s.52 is, in our view, inconsequential because it becomes or is treated as an internal matter of the State in its dealings with land matters.  Section 52 prohibits any person who is not the State from participating in the process.  Only the State or the State through its appointed agencies, may apply for and be issued with a special purpose lease under ss.52 and 100 of the LA.  We will also add in passing that the strict wordings of ss.49, 52 and 100 brings to question the ‘standing’ of the appellant in questioning the process complained of because it could not have qualified as an applicant in the first place, and as the land in question is state land.

16.	The trial Judge, in our view, summarised s.52 well at para. 35 of his decision where His Honour stated:

35.	I now turn to the second contention that the lease was granted to a non-legal entity.  In my view, the Plaintiff’s arguments should fail.  The lease is granted to the Independent State of Papua New Guinea as allowed by section 52 of the Land Act.  The Independent State of Papua New Guinea is a sovereign Nation and a legal entity established under Section 1 of the Constitution of Papua New Guinea.  The lease was granted to the State through the state agent, the Department of Provincial and Local Legal Government Affairs.  Under Sections 188 and 195 of the Constitution, the Department of Provincial & Local Level Government Affairs and its public servants form part of the State services of the Independent State of Papua New Guinea.  The State is therefore entitled to hold the Special Purpose Lease through the third defendant for carrying out its state services on behalf of the State.

17.	We therefore do not find any error(s) committed by the trial Judge on the appeal grounds that should warrant us to intervene.

SUMMARY

18.	In summary, we will dismiss the appeal.

COST

19.	We will order the appellant to pay the respondents’ costs of the appeal proceeding.

ORDERS OF THE COURT

20.	We make the following orders:

1.	The appeal is dismissed in its entirety.

2.	The appellant shall pay the respondents’ cost of the appeal proceeding to be taxed if not agreed.

________________________________________________________________
Lawyers for the appellant: Lane	
Lawyer for the first, second, third & fourth respondents: Solicitor General