SC2772
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO 21 OF 2024

BETWEEN
NATIONAL CAPITAL DISTRICT COMMISSION
Appellant

AND
NATIONAL BROADCASTING CORPORATION
First Respondent

AND
BENJAMIN SAMSON, as Registrar of Titles
Second Respondent

AND
OSWALD TALOPA, as Acting Secretary for Department of Lands & Physical Planning
Third Respondent

AND
HONOURABLE JUSTIN TKATCHENKO, CBE, BEM, OL, MP, as Minister for Lands & Physical Planning
Fourth Respondent

AND
CHRIS MANDA as Surveyor-General of Papua New Guinea
Fifth Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

WAIGANI:  MAKAIL J, AUKA J, KAUMI J
28 NOVEMBER 2024; 2 SEPTEMBER 2025

SUPREME COURT – Appeal against grant of interim injunction – Discretionary judgment – Whether there is a serious question to be tried – Whether balance of convenience favour grant of injunction – Whether damages adequate remedy

SUPREME COURT – PRACTICE & PROCEDURE – Objection to competency – Failure to obtain leave to appeal questions of fact – Whether grounds of appeal raise questions of fact – Whether leave to appeal necessary – Supreme Court Act – Section 14(1)(c) 
 
Facts  

This is an appeal against a ruling of the National Court to grant an interim injunction to restrain the first respondent, its servants and agents from carrying out works on a portion of land described as Portion 4111 or what is commonly referred to as the “Independence Boulevard” located between the National Parliament and the Waigani Drive in the National Capital District.  The first respondent disputed the appellant’s claim of ownership to the land.  Also, at the hearing of the appeal, it objected to the competency of the appeal on the ground that two of the grounds of appeal raised questions of fact and no leave was given to rely on them at the hearing pursuant to Section 14(1)(c) of the Supreme Court Act.

Held:

1.	Where it is alleged in a ground of appeal that the National Court erred in failing to adopt the decision of the Supreme Court in a past case precedent, the onus is on the appellant to establish that the National Court erroneously construed the facts and law in the past case precedent to hold a contrary view.  Because of this, a ground of appeal will raise a question of mixed fact and law, and it will not be necessary to obtain leave to appeal under Section 14(1)(b) of the Supreme Court Act.

2.	To succeed in an application for interim injunction it is necessary for an applicant to amongst others, demonstrate by appropriate evidence that the balance of convenience favour its grant.  A ground of appeal will raise a question of law and competent if it alleges that the National Court’s finding that the balance of convenience favoured the granting of an interim injunction is unsupported by evidence.  Consequently, it is not necessary to obtain leave to appeal under Section 14(1)(a) of the Supreme Court Act:  Australia and New Zealand Banking Group (PNG) Ltd v Equipment Hire Ltd (2024) SC2579.

3.	On a proper construction of Section 12(1)(c) of the Land Act 1996 it must be read in conjunction with Section 13(6) of the Land Act 1996. Section 13(6) confers power on the Minister for Lands and Physical Planning to dispense with the requirement to give a Notice to Treat to an occupant of a land under Section 12(1)(a) and Section 13(1) where the Minister gives a certificate under Section 13(6) in relation to any land, and a notice is published in the National Gazette that the land has been compulsorily acquired.   By virtue of Section 12(2), the land to which the notice applies is vested in the State and freed and discharged from all interests, trusts, restrictions, dedications, reservations, obligations, contracts, licences, charges and rates.

4.	The finding by the primary judge that the Minister for Lands and Physical Planning must comply with the preconditions under Section 12(1) of the Land Act 1996 to give a Notice to Treat to the first respondent before compulsorily acquiring the land is unsupported by law under Section 12(1)(c) and Section 13(6) of the Land Act 1996.

5.	The publication of the notice in the National Gazette under Section 12(2) means that the land is vested in the State and it was open to the Minister for Lands and Physical Planning to grant a Special Purpose Lease to the appellant.  

6.	The appeal is upheld and the order for grant of interim injunction was set aside or discharged forthwith.

Cases cited
Paga No. 36 Limited v Joseph Eleadona, Managing Director of NBC & Ors (2018) SC1671
Australia and New Zealand Banking Group (PNG) Ltd v Equipment Hire Ltd (2024) SC2579
Mudge v Secretary for Lands [1985] PNGLR 387 
Emas Estate Development Pty Limited v John Mea & Ors [1993] PNGLR 215
Tzen Plantations Ltd v Open Bay Timber Ltd (2014) SC1380
Smith v Minister for Lands (2022) SC2326
National Spiritual Assembly of the Baha’is of Papua New Guinea Incorporated v Rosso (2023) SC2431

Counsel
Mr M Mukwesipu with Mr L Agdop, for appellant 
Mr K Ogut, for first respondent
No appearance, for second, third, fourth, fifth & sixth respondents

JUDGMENT

1.	BY THE COURT: This is an appeal against a ruling of the National Court to grant an interim injunction on 27th February 2024 to restrain the first respondent, its servants and agents from carrying out works on a portion of land described as Portion 4111 or what is commonly referred to as the “Independence Boulevard” located between the National Parliament and the Waigani Drive in the National Capital District (“the Land”). The first respondent disputed the appellant’s claim of ownership to the land.

Uncontested Background Facts

2.	The uncontested background facts are, the land was originally described as Portion 93 but has been subject of various survey plans over time and as a result, was given various descriptions.   

3.	In the beginning, on or around 1954 the predecessor of the first respondent, the Australian Broadcasting Corporation (“ABC”) through the administration of the Territory Government of Papua New Guinea established the Waigani transmitter sites on the land by installing transmitters, associate towers, control stations and ancillary buildings on it.

4.	In or around 1962, the land was referred to as Portion 93 based on a survey plan no. 49/706 dated about 19th December 1963.

5.	On 1st December 1973, the Broadcasting Corporation Act, 1973 (“BC Act”) was certified and came into effect.  Pursuant to the BC Act, all properties registered in ABC, including the transmitters, towers and buildings on Portion 93 were transferred to the first respondent. 

6.	The appellant claimed that at all material times no title was granted over Portion 93 to ABC and the land remained in the name of the sixth respondent.

7.	In August 1985, a new survey plan no. 49/1627 was registered for the land, and the description of the land was changed to Portion 1455.

8.	Following that on or around 14th September 1989 Paga No. 36 Limited was granted a Town Subdivision Lease (“TSL”) over the land.  A further survey plan cat 49/1870 was registered over the land.  The TSL changed to Urban Development Lease (“UDL”) and was extended in 1995, 2003 and 2008.  The UDL expired in 2013.

9.	The first respondent disputed the UDL of Paga No. 36 Limited.  In 2011 Paga No, 36 Limited commenced proceedings against the first respondent and the National Court held that the UDL was procured by fraud.  Paga No. 36 Limited appealed to the Supreme Court in proceedings SCA No 7 of 2013: Paga No. 36 Limited v. Joseph Eleadona, Managing Director of NBC & Ors (“Eleadona case”). 

10.	The Supreme Court upheld Paga No. 36 Limited’s appeal and set aside the decision of the National Court which found that Paga No. 36 Limited’s title was null and void.  Refer to the reported judgment of Eleadona case (2018) SC1671.
11.	In May 2009 during the currency of Paga No. 36 Limited's UDL, the land was further subdivided based on the Survey Plan Cat. 49/2715 into Portion 2536 and Portion 2537.

12,	In October 2009 the land was further subdivided into Portions 2534, 2535, 2538 and 2539 based on a Survey Plan Cat. 49/2754.

13.	In or around 2017 the National Government decided to develop the Parliament precinct.  The land was included to complement the Parliament House and to prepare for the APEC Summit in 2018.

14.	Part of the Government’s plan included the construction of the Independence Boulevard, the Convention Centre, the Sana Park and the improvement of the roadsides and road reserves within the area.

15.	Based on the plan, the Minister for Lands and Physical Planning (“the Minister”) acquired the land for public purposes.   A survey was done for the Independence Boulevard area and a Survey Plan Cat. 49/3818 was registered on 31st July 2018.  The whole land including the portion in dispute was given the description Portion 4111.

16.	From there the Minister signed off on the transfer and registration to the appellant as a Special Purpose Lease under Section 100 of the Land Act for the purpose of the Parliament Precinct Road and Park Reserve.

17.	On 30th October 2023 the appellant engaged youths under the Urban Youth Empowerment Program (“UYEP”) who moved onto the portion of the land to clean it.  During the cleaning, the first respondent officers arrived and stopped the youths from cleaning it.

18.	Between 6th and 10th November 2023, the representatives of the appellant and first respondent held several meetings to settle the dispute but were unsuccessful.  

19.	On 4th December 2023 the first respondent applied for an interim injunction.  The appellant opposed the application.  The National Court reserved its decision and on 27th February 2024 it delivered the decision upholding the application and granted the interim injunction under challenged.

Grounds of Appeal

20.	The appellant relies on eight grounds of appeal.  We set out them out in full below:

“1.	Her Honour erred in fact and law when she found at paragraph 46 page 13 of the decision that there is an arguable case or a serious question to be tried, which is based on the interpretation and application of section 32 of the Broadcasting Corporation Act Ch, 149, when;

a.	The issue of whether the National Broadcasting Corporation (NBC) owned the land pursuant to section 32 of the Broadcasting Corporation Act is irrelevant at this stage, as the land, even if it was vested in NBC pursuant to section 32 of the Broadcasting Corporation Act, was on 04 April 2008 lawfully transferred by the State to Paga No. 36 Limited ending any right NBC may have or continue to have on the property.

b.	On the facts the transfer of land by the State from NBC to Paga No 36 Limited was challenged in court by NBC and the Supreme Court on 30 May 2018, in proceedings SCA 7 of 2013, Paga No. 36 Limited -v- Joseph Eleadona, Managing Director of National Broadcasting Corporation, National Broadcasting Commission, The Independent State of Papua New Guinea, Lucas Dekena as Minister for Lands, PNG Land Board, Romily Kilapat as Acting Secretary/Departmental Head, Department of Lands and Physical Planning (Eleadona case) made orders that recognised the transfer of the land by the State to Paga No,. 36 Limited was lawful ending any right NBC may have at law or in equity over the same property.

c.	The Supreme Court decision in the Eleadona case ended any rights NBC may claim to have on the said property pursuant to section 32 of the Broadcasting Corporation Act making the interpretation or application of section 32 of the Broadcasting Corporation Act now a mere academic question as the interpretation and application of section 32 of the Broadcasting Corporation Act as identified by Her Honour will not restore the land back to NBC or resolve the dispute between the parties to warrant grant of injunction against the interests of the registered title holder.

2.	Her Honour erred in fact and law in finding section 32 of the Broadcasting Corporation Act was similar to section 139A of the Forestry Act when section 32 of the Broadcasting Corporation Act did not expressly preserve existing land including land belonging to or occupied by NBC under a certificate of occupancy as was the scheme under section 139A of the Forestry Act.

3.	Her Honour erred in fact and law in failing to take judicial notice of the registered title to Portion 4111 issued to the Appellant so pursuant to section 33 of the Land Registration Act the Appellant has an indefeasible title which should take priority over any equitable interest that NBC may have on the property subject only to fraud and illegality for which NBC failed to plead or take any action to enable it to plead particulars for frauds or illegality, if any, against the Appellant’s title.
4.	Her Honour erred in fact and law when she found there is an arguable case concerning compliance with the mandatory acquisition process under section 12 of the Land Act regarding lack of service of Notice of Acquisition on NBC as owner of the land at the time of compulsory acquisition was owned by Toka Enterprises Limited and not NBC and that NBC had ceased ownership of the said land on 04 April 2008 when the State transferred the land to Paga No. 36  Limited.

5.	Her Honour erred in fact and law in finding there is a serious case relating to NBC’s equitable right to the property following its ongoing occupation of the land at times when title was vacant, against the clear evidence, NBC had lawful authority and was occupying the land without approval and against court orders made in the Eleadona case.

6.	Her Honour erred in fact and law and exceeded her jurisdiction when she proceeded to find that NBC still had an equitable right to the property contradicting the terms, effect and result of the Supreme Court decision in the Eleadona case wherein the Supreme Court effectively ruled the property was lawfully transferred by the State to Paga No. 36 Limited on 04 April 2008, making any right or claim for ownership to the land by NBC now, an abuse of process, otiose and not a serious case warranting the grant of injunctions against NCDC’s registered title.

7.	Her Honour erred in fact and law when she found that the Eleadona case did not apply and did not conclusively resolve the issue of NBC’s right over the property as it does not concern the land compulsorily acquired on 17 December 2017 nor the transfer to NCDC on 30 August 2018, when on the proper consideration of the facts and effect of the decision:

		a.	The Eleadona case involved same parties or their privies.

b.	The substantive issue in Eleadona case was whether the State lawfully transferred the land to Paga No. 36 Limited thus ending any right NBC may have on the said property.

c.	The dispute related to the same property which is now a part of Portion 4111 registered in NCDC’s name.

d.	The Supreme Court on 30 May 2018 ruled that the land was lawfully transferred to Paga No. 36 Limited ending any right NBC has over the said property and that Supreme Court decision has not been set aside by a competent tribunal and is binding on all parties including the lower court that considered the decision under appeal herein.

e.	The Eleadona decision ended any rights NBC may have over the property.

f.	Continuous occupation of the land by NBC despite land being granted to Paga No. 36 Limited was illegal and did not entitle NBC to claim any new equitable rights over the same land and Her Honour erred when she found NBC was entitled to its equitable rights allowing NBC to set up a claim or right to benefit from its own illegal conduct.

g.	The findings of the Supreme Court in the Eleadona case are binding on the National Court and Her Honour exceeded her judgment when she found that NBC had an arguable case in this matter contrary to the terms and effect of the orders in the Eleadona decision.

8.	Her Honour erred in fact and law in granting a blanket injunction restraining all activities on Portion 4111 against the evidence that shows that:	

a.	Portion 4111 covers parts of what was previously identified as portions including Portions 2127, 2156 and Portion 2157.

b.	NBC farm land was previously identified as Portion 2127.

c.	NBC’s claim is confined to the NBC farm land or formerly Portion 2127 which is now part of Portion 4111 and not the whole of Portion 4111.

d.	Portion 4111 is also made up of lands which are not part of the NBC farm land and were previously owned by other persons or entitles other than NBC.

e.	Owners of the other portions of the lands which now form part of Portion 4111 do not challenge NCDC’s title.

f.	There is no basis in fact and law to grant injunction to cover the whole of Portion 4111 or part of Portion 4111 that is not NBC Farm land which activity can be continued by the Appellant without any prejudice to NBC’s claim herein.

g.	It is not just and fair to grant injunctions on the entire property or Portion 4111 other than the land claimed by NBC.

h.	NBC has no interest in the whole of Portion 4111 except for the area it currently occupies referred to as the NBC Farm.

i.	The injunction in so far as it covers all of Portion 4111 is unfair unjust unnecessary and without any legal basis.”

Objection to Competency 

21.	Before we address the merits of the appeal, it is necessary to rule on the first respondent’s notice of objection to competency filed on 19th April 2024.  The first respondent objects to Grounds 3(1) to 3(7) and Ground 3(8)(a)-(i) of the notice of appeal on the ground that they raise questions of fact and it is necessary for the appellant to obtain leave to appeal them pursuant to Section 14(1)(c) of the Supreme Court Act.  Section 14(1)(c) states that an appeal lies to the Supreme Court with leave on a question of fact.  In this case, the appellant did not obtain leave to rely on these grounds at the hearing.

22.	At the hearing, counsel for the first respondent abandoned the objection in relation to Grounds 3(1) to 3(6) and pressed the objection to Ground 3(7)(a)-(g) and Ground 3(8)(a)-(i).  We have highlighted the grounds of appeal under challenged in bold and underline print above.

23.	After hearing the counsel for the appellant and the counsel for the first respondent, we consider it not necessary to rule on the appellant’s submission that the notice of objection to competency is defective and incompetent because it fails to cite the relevant Supreme Court Rules to engage the jurisdiction of the Supreme Court to determine the objection.  For the reasons which will follow hereunder, we are not satisfied that Ground 3(7)(a)-(g) raises a pure question of fact and leave is necessary.  

24.	On the contrary, we consider that where it is alleged in a ground of appeal that the National Court erred in failing to adopt the decision of the Supreme Court in a past case precedent, the onus is on the appellant to establish that the National Court erroneously construed the facts and law in the past case precedent to hold a contrary view.  Because of this, we are of the view that the ground of appeal will raise a question of mixed fact and law, and it will not be necessary to obtain leave pursuant to Section 14(1)(b) of the Supreme Court Act.  

25.	In the present case, in our view Ground 3(7)(a)-(g) alleges that the National Court erred in holding that the Eleadona case did not conclusively determine the first respondent’s claim of ownership to the land.	 Because of this, the appellant alleges that the National Court should have adopted the reasons in Eleadona case and would have held that the title to the land had passed to Paga No. 36 Limited and this ground raises a question of mixed fact and law and is competent.  

26.	As to Ground 3(8)(a)-(i), we are of the view that to succeed in an application for interim injunction it is necessary for an applicant to amongst others, demonstrate by appropriate evidence that the balance of convenience favour its grant.  A ground of appeal will raise a question of law and competent if it alleges that the National Court’s finding that the balance of convenience favours the grant of an interim injunction is unsupported by evidence.  Accordingly, we agree with the view expressed by Hartshorn J in Australia and New Zealand Banking Group (PNG) Ltd v Equipment Hire Ltd (2024) SC2579 that where a ground of appeal alleges that the National Court’s finding on the balance of convenience is unsupported by evidence, the ground raises a question of law and it is not necessary to obtain leave under Section 14(1)(a) of the Supreme Court Act.

27.	In the present case it is alleged that Portion 4111 comprises of a large portion of land which included land previously identified as Portions 2127, 2156 and 2157.  Portion 2127 is the first respondent’s farmland.  This is the portion of land where the transmission towers and station are located and where the servants or agents of the appellant (youths) were undertaking work when they were restrained by the interim injunction.  This is the disputed portion of land.

28.	According to Ground 3(8)(a)-(i), there is no evidence to support the National Court’s finding that the appellant’s servants or agents (youths) interfered with the whole of Portion 4111, and the interim injunction should not have been granted.  For this reason, this ground raises a question of law, and it is not necessary for the appellant to obtain leave under Section 14(1)(a) of the Supreme Court Act.  It is competent.

29.	Accordingly, we dismiss the notice of objection forthwith.

Substantive Appeal

30.	We turn now to the substantive appeal.  There is no contest to the National Court’s articulation of the principles applicable to an application for interim injunction at [11] of its ruling.  The major ones are:

	(a)	Whether there are serious questions to be tried,

(b)	Whether the balance of convenience favour the grant of an interim injunction, and

(c)	Whether damages would not be an adequate remedy if the interim injunction is not granted.

Serious question to be tried

31.	As we noted above, between 1954 and 2018 the subject land had transformed from Portion 93 to Portion 4111 when it was registered as a Special Purpose Lease and transferred to the appellant.  Presently, the appellant is the registered proprietor or leaseholder of the subject land.  As a registered proprietor, the appellant holds an indefensible title under the doctrine of indefeasibility of title unless it is established that one or more of the exceptions to the doctrine of indefeasibility of title under Section 33(1) of the Land Registration Act is present.  See Mudge v Secretary for Lands [1985] PNGLR 387 and Emas Estate Development Pty Limited v John Mea & Ors [1993] PNGLR 215.

32.	It follows that for the first respondent to successfully have the National Court set aside the appellant’s title to the land it must first overcome the appellant’s defeasible title.  The major question in this appeal is whether the first respondent has established that there is a serious question in relation to the validity of the appellant’s title based on the exceptions under Section 33(1) of the Land Registration Act for the interim injunction to be granted. The exceptions are:

•	fraud.
•	any encumbrance notified by entry or memorial on the relevant folio of the Register.
•	any estate or interest of a proprietor claiming the same land under a prior instrument of title.
•	any omission or misdescription of any right-of-way or either easement created in or existing on the same land.
•	a wrong description of the land or of its boundaries.
•	 where there is a tenancy from year to year or for a term of three years created either before or after the issues of the instrument of title of the registered proprietor.
•	a tenancy provided in Section 28 of the Act.
•	a lease, licence or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made.
•	any unpaid rates, taxes, or other money which, without reference to registration under the Act, are expressly declared by a law to be a charge on land in favour of the State or a Department or officer of the State or of a public corporate body.

33.	In the National Court the first respondent’s case was premised on three major grounds:

	(a)	breach of Section 32 of the BC Act, Ch 149, 

(b)	equitable interest based on it being a long-time occupant of the land, and

(c)	breach of compulsory of land process under Section 12 of the Land Act.

34.	At paragraph 43 of its written submissions, the appellant contests the finding by the National Court on a serious question to be tried on four major grounds:

(a)	section 32 of the BC Act does not vest the ownership of the land that was not registered in the name of the Commission to the Corporation but if it does, such a contention is mute following the decision of the Supreme Court in the Eleadona case which ultimately held that the land was lawfully transferred to Paga No. 36 Limited on 4th April 2008.  Because of this, this ground does not support the grant of the interim injunction.

(b)	following the decision in the Eleadona case the first respondent lost its right over the land and was illegally occupying it while the appellant is the current registered proprietor and holds an indefeasible title over it.  Similarly, as it is said, equity must follow the law and as the first respondent is not the registered proprietor but is in continuous occupation of the land without lawful permission and in breach of the Court orders, it has no legal right to remain on the land and have the protection of the interim injunction.

(c)	the ground questioning the process of compulsory acquisition of the land is without merit because the land was vacant at the time of acquisition by the State.  Following its acquisition, by way of a direct grant, the State granted a Special Purpose Lease to the appellant.  It follows that the first respondent makes no claim of fraud against the appellant’s title pursuant to the Special Purpose Lease.

(d)	in the alternative, if the first respondent did establish that there is a serious question to be tried in relation to the legality of the appellant’s title, the interim injunction should have been granted over Portion 2127 which was granted to Paga No. 36 Limited.  Except for this portion, the other portions are and were never part of the first respondent’s land and the interim injunction should not lie over them. 

Breach of Section 32 of the BC Act, Ch 149

35.	We have carefully considered the appellant’s strong submission that Section 32 of the BC Act does not vest the ownership of the land that was not registered in the name of the Commission to the Corporation.  We have also considered the appellant’s alternative submission that if it does, such a contention is mute because the decision of the Supreme Court in the Eleadona case ultimately held that the land was lawfully transferred to Paga No. 36 Limited on 4th April 2008 and therefore title had passed to Paga No. 36 Limited pursuant to an Urban Development Lease (“UDL”).  Moreover, when it lapsed, a further UDL was granted to Toka Enterprises Limited and title had passed to Toka Enterprises Limited, but the UDL subsequently lapsed, and the land became vacant.  

36.	We have also read Section 32 which relevantly states:

	“32.	TRANSFER OF ASSETS, ETC, TO THE CORPORATION

(1)	All assets occupied or held by the Commission and all obligations and liabilities of the Commission immediately before the coming into operation of the Broadcasting Commission (Change of Name and Corporate Structure) Act 1995 are, on that coming into operation, transferred to the Corporation.

(2)	Where any property vested in the Commission is land registered under the Land Registration Act (Chapter 191), the Registrar of Titles, shall without formal transfer and without fee, on application in that behalf by the Corporation, enter on register the Corporation in the Register Book and, on entry or registration, grant a certificate of title, lease or other instrument evidencing title of the land, as the owner of the land within that Act.” (Underlining added).

37.	We have also carefully read the ruling of the National Court in relation to the application of Section 32 of the BC Act. We note at paragraph 16 of the ruling, the primary judge also referred to Section 139A of the Forestry Act 1991.  

38.	Section 139A states:
	
“139A.	Transfer of land to the authority

(1)	All land in Papua New Guinea in the name of the State held under a Certificate of Occupancy or set aside for use by the Department of Forests or the Forest Industries Council immediately before the communing into operation of this Act is, on and from the coming into operation of this Act deemed to have been transferred to and to have become the property of the Authority.

(2)	Where land referred to Subsection (1) is land registered under the Land Registration Act 1981, the Registrar of Titles, shall without formal transfer and without fee, on application in that behalf by the Authority, enter or register the Authority in the Register kept under that Act and, on entry and registration, grant a certificate of title, lease or other instrument evidencing title to the land within that Act.” (Underlining added).

39.	We further note that according to paragraph 14  of the ruling, the primary judge noted that the first respondent’s submissions that Section 139A was a subject of judicial interpretation by the Supreme Court in Tzen Plantations Ltd v Open Bay Timber Ltd (2014) SC1380 where a wider interpretation was given to the term “land” to not only mean registered land but also unregistered land.

40.	Significantly, we note that Section 32 of the BC Act and Section 139A of the Forestry Act are expressed in similar but not in identical terms.  In interpretating Section 32 of the BC Act, the primary judge adopted the approach taken by the Supreme Court in Tzen case and gave a wide interpretation.  We agree with the primary judge’s reasons at paragraphs 19 to 22 of the ruling that if the term “assets” in Section 32(1) is given a wide interpretation to include land occupied by the Commission prior to coming into operation of the BC Act is transferred to the Corporation, it would include an unregistered land.  The primary judge explained thus:

“19.	Section 32(2) BCA is contrasted with s 139A(2) of the Forestry Act.  In my view, s139A(2) does create a statutory right in the Forestry Authority to register any lands of its predecessor that have been ‘set aside for use’ to its predecessor.  To my mind that resulted in the ruling of the Supreme Court in Tzen in extending s139A of the Forestry Act to apply to unregistered lands

20.	The difference between Section 32 BCA and s 139A Forestry Act also goes to how it is drafted.  Section 139A Forestry Act applies specifically to land whereas Section 32 BCA, applies to both assets and land and specifies in subsection 2 that it applies specifically to ‘land registered under the land Registration Act chapter 191, providing an interpretation that Section 32(2) only applies to existing registered land.

21.	I find there are drafting differences in s32 BCA and s139A of the Forestry Act that alters the interpretation the applicant is contenting on which in my view creates an arguable case for substantive hearing on whether the applicant has an equitable interest in the land from its predecessor.  I reach this view regarding the use of the term ‘occupation’ in s32(1) BCA which seem to transfer unregistered land that the predecessor occupied or had equitable interest in.

22.	My view is that while S32(2) BCA does not grant the statutory right the plaintiff is contending for s32(1) BCA, on the other hand, does transfer both legal and equitable interest in assets to the plaintiff.  I interpret the term ‘assets’ in its wider ordinary english meaning to include land.  It is arguable for the plaintiff to contend that the term ‘occupied’ in s32(1) CBA refers to the physical occupation of the Waigani aerial farm and transfers an equitable interest to the NBC.”	

Equitable interest based on it being a long-time occupant of the land.

41.	Moreover, as correctly noted by the primary judge at paragraph 23 of the ruling it has been long recognised that long term occupation on land creates an equitable interest in land, but such interest does not defeat the indefeasible nature of a title granted under a State lease under the Land Act.   There is no dispute that the ABC was the original occupant of the land until it ceased operations in PNG at PNG’s independence and the first respondent took up occupancy. The primary judge correctly reinforced the first respondent’s interest by articulating the history of the transformation of the land based on the affidavit of Augustine Ravi at paragraphs 24 to 26 of the ruling.   
42.	In our view there are two land concepts at play here.  There is a registered land (land registered under the Land Registration Act) which is recognised by Section 32(2) of the BC Act and an unregistered land.  According to Section 32(2), where any property vested in the Commission is land registered under the Land Registration Act, its title may be transferred from the Commission to the Corporation (first respondent) without following the formal registration process and is free of charge, but for the first respondent to apply to the Registrar of Titles to enter on the register the first respondent in the Register Book.  When that is done, the Registrar of Titles shall grant to the first respondent, a certificate of title, lease or other instrument evidencing title of the land, as the owner of the land.  This procedure is adopted in the case of a registered land.

43.	The question is where the land has not been registered or is unregistered, how is it transferred from the Commission to the Corporation (first respondent)?  We have received no submissions on this question.  In our view, there is a missing link between the vesting of an unregistered land on the first respondent and registered land to give it the status of a registered land within the meaning of Section 32(2) of the BC Act.  Questions such as who is responsible for having an unregistered land converted to a registered land immediately come to the forefront; is it the Department of Lands and Physical Planning and the State or the first respondent or any party interested in the land?  And what is the process to adopt to convert an unregistered land to registered land in order to facilitate the transfer of title of the land from the Commission to the Corporation (first respondent) under Section 32(2) of the BC Act?  

44.	In our view, as a long-term occupant of the land as demonstrated by the history of its occupation during the transformation of the land to the current description as Portion 4111, it is arguable that the first respondent’s equitable interest in the land should be recognised pending it to materialise as a legal interest (right) at some future date when the process of conversion of unregistered land to registered land has been undertaken and completed.  It follows that the questions posed above demonstrate that there is a serious question to be tried in relation to the application of Section 32 of the BC Act.  Only a trial will these questions be properly answered.

Eleadona case and vacant land 

45.	Next, we note the appellant’s strong submissions in support of the alternative ground that it will not be necessary to determine the question of serious question to be tried if we uphold its submissions that the decision of the Supreme Court in the Eleadona case ultimately held that the land was lawfully transferred to Paga No. 36 Limited on 4th April 2008 and therefore title had passed to Paga No. 36 Limited pursuant to an UDL.  Moreover, when it lapsed, a further UDL was granted to Toka Enterprises Limited and title had passed to Toka Enterprises Limited, but the UDL subsequently lapsed, and by virtue of the UDL’s expiration, the land became vacant. 
 
46.	To reinforce its submissions, the appellant repeated its submissions before the primary judge that the Eleadona case held that there was no evidence that the registered proprietor procured the title by fraud and that the orders of the National Court including the declaration that the UDL was null and void ab initio be set aside.  By virtue of the Eleadona case the land was vacant when the UDL was granted to Paga No. 36 Limited.  Further, the appellant went on to submit that based on the Eleadona case, the dispute over ownership of the land has been settled and while it was not a party to that appeal, it relies on the doctrine of issue estoppel and submits that the first respondent is barred from making the same claim for the land.  

47.	We note the primary judge’s reasons at paragraphs 39 to 40 of the ruling in forming the view that the Eleadona case did not apply.  First, despite the expiration of the UDL, the Supreme Court ruled that Paga No. 36 Limited had standing to pursue the appeal.   Secondly, contrary to the finding by the National Court, there was evidence that the Minister for Lands and Physical Planning (“Minister”) exempted the land from advertisement pursuant to Section 69(2)(d) of the Land Act. 

48.	In our view, whether the Eleadona case is applicable in this case is not the issue. Similarly, whether the land is vacant is not the issue.  The correct issue is whether the acquisition of the land by the Minister by compulsory process under Section 12 of the Land Act and subsequent grant of the Special Purpose Lease to the appellant is superior to the first respondent’s equitable interest as a long-term occupant of the land.  In our view, the appeal raises and falls on this issue.  

49.	However, the appellant asserts that the land is vacant because according to paragraph 31 of the affidavit of Augustine Ravi, “Consistent with available plans held by the Department of Lands office, the Minister compulsorily acquired the land for public purpose” under Section 12 of the Land Act and proceeded to grant a Special Purpose Lease to it. The primary judge disagreed.  At paragraph 42 of the ruling, the primary judge explained that“……….when the UDL’s lapsed, NBC’s equitable interest in the land remained each time, only to be superseded by the grant of a UDL.  Therefore, at the time when the Minister compulsorily acquired the land on 22 December 2017, when no UDLs were issued, he ought to have been aware of NBC’s equitable interest as a long term occupier of the land and taken steps to notify NBC pursuant to s12 of the Land Act.  That to me is the crux of the issue for NBC and one which must be properly argued at the substantive hearing of the proceeding”

Breach of compulsory of land process under Section 12 of the Land Act

50.	We now turn to consider the application of Section 12 of the Land Act.  The appellant submits that the publication of the notice in the National Gazette No. G975 on 22nd December 2017 by the Minister puts it beyond argument that the land had transformed from being a vacant land to a registered State lease in the form of a Special Purpose Lease in its favour.  The notice in the National Gazette may be found at Annexure “NW5” to the affidavit of the first respondent’s witness Noel Warran who is the Lands and Property Officer.  While the first respondent contests the notice on that ground that it was not notified or given a Notice to Treat by the Minster of his intention to compulsorily acquire the land, there is no contest from what we have outlined at [16] above that the purpose of the acquisition of the land was to develop the Parliament Precinct Road and Park Reserve. Also, it was in preparation for the APEC meeting in 2018.

51.	The notice was published in the National Gazette pursuant to Section 12(1)(c) of the Land Act which states:

	“The Minister may, on behalf of the State - 
	(a)	……………	
	(b)	……………
(c)	at any time after he has given a certificate under Section 13(6) in relation to any land

by notice in the National Gazette, declare that the land, other than any interest in respect of which a notice to treat has been withdrawn, or any chattel, is acquired by compulsory process under this Act for a public purpose specified in the notice.”

52.	Further, Section 12(2) states:

“(2) On the publication of a notice under Subsection (1), the land or chattel to which the notice applies is – 

		(a)	vested in the State; and	

(b)	freed and discharged from all interests, trusts, restrictions, dedications, reservations, obligations, contracts, licences, charges and rates.”	

53.	Also, relevantly Section 13(1) and (6) of the Land Act states:

“(1) The Minister shall not acquire land by compulsory process under this Act unless he has first caused to be served on each of the owners of the land, or such of them as can, after diligent inquiry, be ascertained, a notice inviting the person on whom the notice is served to treat with the Minister for the sale or surrender to the Minister, on behalf of the State, of his interest in the land.
(2)	…….
(3)	…….
(4)	…….
(5)	…….
(6) This Section does not apply in a case where the Minister certifies that there are special reasons why the Section should not apply.”

54.	At paragraph 43 of the ruling the primary judge rejected the appellant’s submission that “……..once the compulsory acquisition notice was published, the land is vested in the State free from all obligations associated with the land as provided by s12(2) of the Land Act.  With respect, that occurs after the preconditions in s12(1) Land Act are complied with.”

55.	Based on this reading of Section 12 of the Land Act and the first respondent’s equitable interest as long-term occupant of the land and the Minister’s exercise of power to compulsorily acquire the land, at paragraph 46 of the ruling the primary judge concluded that there was a serious question to be tried in relation to the construction of Section 32 of the BC Act.

56.	In contesting the primary judge’s construction of Section 12 of the Land Act the appellant submits that on a proper construction of Section 12(1)(c) it must be read in conjunction with Section 13(6).  Section 13(6) confers power on the Minister to dispense with the requirement to give a Notice to Treat to an occupant of the land under Section 12(1)(a) and Section 13(1) where the Minister gives a certificate under Section 13(6) in relation to any land, and a notice is published in the National Gazette that the land has been compulsorily acquired.  The effect of that is by virtue of Section 12(2), the land to which the notice applies is vested in the State and “freed and discharged from all interests, trusts, restrictions, dedications, reservations, obligations, contracts, licences, charges and rates.”

57.	We uphold the appellant’s submissions.  The appellant’s construction of Section 12 reinforces the power conferred on the Minister under Section 13(6) to dispense with the requirement to give a Notice to Treat to the first respondent as the occupant of the land under Sections 12(1)(a) and Section 13(1).  Also, see the observations by the Supreme Court in Smith v Minister for Lands (2022) SC2326 at [16] and National Spiritual Assembly of the Baha’is of Papua New Guinea Incorporated v Rosso (2023) SC2431.  It follows that it was not necessary for the Minister to give a Notice to Treat to the first respondent before compulsorily acquiring the land and the first respondent’s claim that it was denied a right to be heard by the Minister on the issue of acquisition of land by compulsory process does not raise a serious issue for further consideration by the Court.  For these reasons, we are satisfised that the primary judge’s conclusion that the preconditions in Section 12(1) must be complied with and that there is a serious question to be tried are unsupported by law under Section 12(1)(c) and Section 13(1) of the Land Act.

58.	On the other hand, we are satisfied that the publication of the notice in the National Gazette under Section 12(2) means that the land is vested in the State and it was open to the Minister to grant a Special Purpose Lease to the appellant.  For these reasons, we uphold the appellant’s submissions that it is beyond argument that the land had transformed from being a vacant land to a registered State lease in the form of a Special Purpose Lease in its favour. In our view, the appellant’s interest in the land is superior to the first respondent’s equitable interest because of the indefeasibility of title of the Special Purpose Lease.  The appeal will be upheld on this ground.

Portion 2127

59.	Given this finding, it is not necessary to rule on the appellant’s alternative ground that the appeal be upheld in part and that the order granting the interim injunction be varied to expressly cover part of the land which is Portion 2127.  This is the whole of the portion of land occupied by the first respondent known as NBC Farm Land and the interim injunction may continue to be in place until the completion of the National Court proceedings. 

Indefeasibility of Title

60.	Strikingly, in the National Court, the first respondent made no claim based on any of the grounds to set aside the appellant’s title under Section 33(1) of the Land Registration Act. We have set them out at [32] above.  If it was relying on fraud, there are no expressed pleadings or allegations on fraud including an order sought to set aside the appellant’s title based on fraud in the Originating Summons. It took the same position in this appeal.  However, it relied heavily on three main grounds which we have outlined at [33] above to validate its occupation of the land.   In our view, these grounds do not constitute any of the grounds under Section 33(1) of the Land Registration Act to defeat the appellant’s title.  

61.	Moreover, we note at paragraphs 4, 6, 7, 8 to 12 of the Originating Summons, the first respondent prays for declaratory orders that the alleged acquisition of the land by compulsory process by the fourth and sixth respondents is illegal because it was done in breach or violation of the procedure for acquisition of land by compulsory process under Sections 8(2), 12, 13 and 15 of the Land Act.  In addition to our finding that there is no serious issue in relation to the acquisition of the land under Section 12 of the Land Act, again, there is no order sought to set aside the appellant’s title.  This further reinforces the appellant’s case that there are no serious issues to be tried in the proceedings in the National Court.

Right to Protection from Unjust Deprivation of Property

62.	Further, we note at paragraph 8 of the Originating Summons that the first respondent relies on Section 53 of the Constitution to seek an order in the nature of a declaration that the conduct of the fourth and sixth respondents to acquire the land by compulsory process constituted a breach or violation of its right to be protected from unjust deprivation of property under Section 53 of the Constitution. While the first respondent may rely in Section 53 of the Constitution to validate its occupation of the land, it has not been demonstrated how its reliance on this significant constitutional provision will upset the appellant’s indefeasible title over the land.  In our view, a general and vague complaint by the first respondent of being deprived of the land under Section 53 of the Constitution is not sufficient to set aside an indefeasible title to warrant a close examination by the Court at trial.  

Balance of convenience 

63.	While we note the primary judge’s extensive reasons at paragraphs 59 to 66 of the ruling for finding that the balance of convenience favours the grant of the interim injunction, based on our reasons at [48] to [58] above, we are not satisfied that the first respondent has demonstrated that the Minister failed to comply with the process for compulsory acquisition of land under Section 12 of the Land Act.  In our view, this factor calls into question the viability or success of the first respondent’s action in the National Court and operates against the first respondent’s interest in occupying and maintaining the transmission towers and lines and facilities on the land.  On the other hand, there is no expert evidence to support the appellant’s contention that the transmission towers and lines pose danger to human life or health and vice versa.  Moreover, any reported case of permanent disability or loss of life by reason of being exposed to the radio signals or radiation.  Having said that we consider that the option by the second to sixth respondents to provide alterative land for the first respondent to carry out its operations is still available and will be a matter for the relevant parties to take up.

Damages as an adequate remedy

64.	Similarly, we note the primary judge’s extensive reasons at paragraphs 54 to 58 of the ruling for finding in favour of the first respondent that damages will not be an adequate remedy for the first respondent. However, based on our reasons at [48] to [58] above, we are not satisfied that the first respondent has demonstrated that the Minister failed to comply with the process for compulsory acquisition of land under Section 12 of the Land Act.  Again, in our view, this factor calls into question the viability or success of the first respondent’s action in the National Court.  Any damages or monetary loss or property loss that the first respondent may suffer can be adequately compensated by the respondents as part of their obligation to assisting the first respondent in the event that the outcome of the National Court proceedings go against it.

Conclusion 

65.	For the forgoing reasons, we are satisfied that the learned primary Judge made an identifiable error in the exercise of the discretion to grant the interim injunction: Curtain Bros (PNG) Ltd v. University of Papua New Guinea (2005) SC788. 

Order

66.	The final orders of the Court are:

	1.	The appeal is upheld.

2.	The interim injunction of 27th February 2024 is set aside or discharged forthwith.
3.	The respondents shall pay the appellant’s costs of the appeal, to be taxed, if not agreed.
	
4.	Time shall be abridged.
__________________________________________________________________
Lawyers for appellant: NCDC Legal Division	
Lawyers for first respondent: Kup & Co Lawyers			
Lawyer for second to sixth respondents: Solicitor General