|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCM 30 OF 2025
BETWEEN:
PAPUA NEW GUINEA FOREST AUTHORITY
Appellant
AND:
SUKIRI INVESTMENT LIMITED
First Respondent
AND:
BENJAMIN SAMSON, SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Respondent
AND:
SAM WANGE - CHAIRMAN, NATIONAL LAND BOARD, DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Respondent
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent
WAIGANI: LOGAN J, ANIS J, COATES J
25 FEBRUARY 2026
INDEFEASABILITY OF TITLE – where the first respondent was granted a lease over a piece of land – where that lease was registered on the Register of State Leases – where the land had been used by the Department of Forests since 1972 – where s 139A of the Foresty Act pre-dated the grant of lease to the respondent – whether s 139A of the Foresty Act had the effect of transferring the land to the appellant – whether notwithstanding that s 139A transferred the land to the appellant perfection on the register is indefeasible – whether the lease granted to the first respondent was a nullity – appeal granted.
The land the subject of the dispute (Allotment 8) had been used by the Department of Forests, and then the Papua New Guinea Forest Authority (the Authority) since 1972. Section 139A of the Foresty Act 1991, introduced by the Forestry (Amendment No.2) Act 1996, pre-dated the registration of the lease of Allotment 8 in the name of the first respondent.
Held
Cases cited
Tzen Plantations Limited v Open Bay Timber Limited [2014] PGSC 15; SC1380
Paiye v Manda [2005] SC2830
Unas v Mumu [2025] PGSC 13; SC2704
Ulelio v Nelulo Land Group, Registrar of Titles and The State (1998) N1699
Mudge v The State [1985] PNGLR 387
Counsel
Mr A Chillion, for the appellant
Mr A Manase, with Ms E Paul, for the first respondent
Mr N Pilamb, for the fourth respondent
1. LOGAN J: On 7 February 2012, purportedly pursuant to section 100 of the Land Act 1996, Sukiri, Investment Limited (Sukiri), the present first respondent was granted a 99-year State lease under land described as Volume 19, Folio 220, Section 19, Allotment 8 (Montoro street), Morobe Province, (subject land). The granting of that State lease followed what at least purportedly was an orthodox process under the Land Act for the granting of such a lease. That process is more particularly described in relation to this case in the reasons for judgment of the primary judge at paragraphs [12] – [18]. A sequel to the purported granting of the State lease was that the grant was gazetted on 17 February 2017: see gazette number G110 of 2017.
2. The State lease was registered in the name of Sukiri by the Registrar of Titles. The Land Act in that regard intersects with the Land Registration Act 1981 with respect to the registration by the Registrar of Titles of a State lease of the kind purportedly granted.
3. Thereafter, Sukiri, by various means has sought the possession of the subject land and the ejectment of persons on it whom it contends have no lawful right of occupancy. For present purposes, that means the appellant, the Papua New Guinea Forest Authority (the Authority). The Authority has always disputed the legality of the State lease. Its position has always been that the subject land was vested in it.
4. In an endeavour to vindicate that position, the Authority instituted judicial review proceedings in the National Court. It may be said, with respect of those proceedings that they exhibit a certain diffuseness of thinking in that the Authority has sought by them to challenge decisions anterior to the grant of the State lease to Sukiri, as well as the granting itself of that State lease. It seems that that diffuseness of thinking coupled with an apprehension as to the incorrect naming of respondent parties informed a decision by Sukiri to challenge in the National Court the competency of the judicial review proceeding.
5. The learned primary judge was persuaded to entertain that competency objection as an issue separate from dealing with the substantive issues going to the legality of the grant of the State lease to Sukiri.
6. Experience tells one that, often, the dealing separately with such an issue can have Siren-like qualities which lure the parties onto the rocks of prolongation rather than truncation of the real issues in a case. For reasons which will follow, the present offers an example of that. Suffice to say, the learned primary judge was persuaded that there were errors of compliance and of joinder of parties and the like, such that the competency objection should be upheld. Accordingly, the order made by the National Court was that the judicial review application be dismissed with costs.
7. From that decision the Authority now appeals to this court. As happens all too frequently in this jurisdiction, that appeal itself attracted an Objection to Competency. The Objection to Competency recites a litany of alleged errors said to go to jurisdiction. But the jurisdiction to entertain an appeal from a final order of the National Court dismissing a judicial review application is clear. The alleged errors in the Objection to Competency range from the trivial to the inconsequential. For example, the old chestnut of whether or not the judgment concerned has been “certified” is one of the several distracting issues raised.
8. Upon the calling on of the proceeding this morning and having an apprehension as to what, having regard to certain uncontroversial facts, might be an outcome which would flow on those facts in terms of the legality or otherwise of the grant of the State lease, having regard to this court’s earlier judgment in Tzen Plantations Limited v Open Bay Timber Limited [2014] PGSC 15 SC1380, the court put to the parties whether, even assuming the appeal against the dismissal were upheld, there was any point in remitting the case to trial in the National Court.
9. More particularly, that was because, on facts which appeared uncontroversial, it appeared prima facie that an inevitable outcome upon the application of Tzen Plantations to those facts was that the grant of the State lease was a nullity.
10. Before turning to that question, it is first necessary to clear the way in respect of the Objection to Competency.
11. In this case, given the substantive issue at large, the interests of justice in my view overwhelmingly favour the court acting as it did in Paiye v Manda [2005] SC2830, acting so as to deem the Notice of Appeal as filed nunc pro tunc sufficiently to comply with the rules of court on and from the date of its filing. As was the case in Paiye v Manda, acting in that way renders it unnecessary to decide which of the lines of authority as to what certified means should be followed. See as to this, Unas v Mumu [2025] PGSC 13 SC2704.
12. Further, on any view in the National Court, the joinder of the State meant that each of the officials of the State involved in the purported granting of the State lease and the State itself as well as the successors in office to those involved in that grant would be bound by the outcome. Unfortunately, the learned primary judge was not confronted with that fundamental proposition. I suspect strongly that a reason for that was the way in which the case was conducted before her Honour, as well as the diffuseness of thinking in terms of which was the operative decision to challenge.
13. It is always salutary to recall that the object of an exercise on judicial power is doing substantial justice on the merits. One should in my view be very guarded indeed in resorting to matters or form in ways that do not do justice on substantive merits.
14. As to those substantive merits it is necessary to recite some facts which appear to be uncontroversial. A convenient restitution of those facts is found under the heading background in the reasons of the learned primary judge, which recites that the appellant authority is the statutory body established under the provisions of the Forestry Act 1991. It is responsible for the management of Papua New Guinea’s Forestry Resources.
15. Prior to the enactment of the Forestry Act, an administrative emanation of the State, namely the Department of Forestry, occupied the subject land ever since 1972, that is before Independence. The State via the Department of Forestry had used the subject land to carry out various national policies and functions in relation to forestry. After its establishment, the Authority continued to occupy the subject land for the purposes of carrying out its statutory functions.
16. Sukiri is a company registered on 27 February 2004 under the Companies Act 1997.
17. Apart from the Department of Forestry, and after its establishment, the Authority, the subject land was also used by two other administrative emanations of the State, namely: the Department of Works; and the Department of Education and Archives.
18. Sukiri’s interest in the subject land flowed from a legitimate commercial desire on its part to expand its business. Hence in or about 2009 it made enquiries of the Department of Lands about vacant land in Lae. What followed from that was the chain of events as recited by the primary judge which as I have said entailed a quite orthodox invocation by Sukiri of what it sought: a process to leading to the lawful grant to it of a State lease in respect of the subject land.
19. It is now necessary to address the question of whether on the facts just recited which materially include a continuous occupancy on or from 1972 of the subject land for the purposes initially of the Department of Forestry and after the Authority’s establishment, the purposes of the Authority, that transfer was lawful.
20. Subject to the Forestry Act, it was lawfully possible for the State lease to be granted to Sukiri. As to this it is necessary to set out sections 138 and 139A of the Forestry Act:
138. TRANSFER OF ASSETS ETC., TO THE AUTHORITY.
(1) All –
(a) assets (other than land held by the State) which, immediately before the coming into operation of this Act, were held or occupied by the Department of Forests and all liabilities and obligations of the Department of Forests immediately before the coming into operation of this Act; and
(b) assets (other than land held by the State) which immediately before the coming into operation of this Act were held or occupied by the Forest Industries Council and all liabilities and obligations of the Forest Industries Council immediately before the coming into operation of this Act,
are, on that coming into operation, transferred to and become assets and liabilities and obligations of the Authority.
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 coming 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 in 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 Registrar 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.
21. It is common ground that the subject land is not the subject of a Certificate of Occupancy granted to the Authority. But section 139A is directed to a wider class of land than just land in Papua New Guinea in the name of the State held on the Certificate of Occupancy. The embrace of s 139A(1) extends the term: “... or set aside for use by the Department of Forests, Water Forest Industries Council... ”. It is the meaning and the effect of section 139A which was addressed by this court in Tzen Plantations at [19]:
[19] The first line of s. 139A(1) specifically refers to "land.... in the name of the State...". There is then a qualification as to that land. Then s. 139A(1) provides that "...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." Section 139A(1) therefore expressly states that certain land in the name of the State is deemed to have been transferred to and to have become the property of the Authority. The necessary implication of this in our view, is that the State is bound by this provision. Consequently this submission of Tzen Plantations is rejected.
[20] Given the above, we are satisfied that the Land was deemed to have been transferred and to have become the property of the Forest Authority by virtue of s. 139A Forestry Act as at the date that s. 139A came into force pursuant to the Forestry (Amendment No.2) Act 1996. From that date, as the Land was the property of the Forest Authority, only the Forest Authority could deal with the Land. The State could not, as it no longer owned and did not have the property of the Land. Consequently, the purported State Lease granted to Tzen Plantations was the result of an error of law and is a nullity. In this regard we refer to the decision of Woods J. in Ulelio v. Nelulo Land Group, Registrar of Titles and The State (1998) N1699.
22. In this case, both the Authority and the State contended that on the facts as recited the inevitable consequence of the construction adopted on section 139A in Tzen Plantations was that there was never any lawful authority to grant the State lease to Sukiri. Both embraced the proposition that in the circumstances, even though the appeal might be allowed, it was pointless to send the case to trial in the National Court. That was because on the facts as revealed, the State lease was unlawful. Sukiri resisted these propositions and the consequences. The question raised was whether “set aside” covered the continuous occupancy of the subject land, before and after the establishment of the Authority for Forestry purposes.
23. It is difficult in my view to construe “set aside” as not covering at the very least the circumstance of the occupation by the Department of State for forestry purposes. Further, Sukiri submitted that even if this might otherwise be the case, the occupancy as well of the Department of Works and Education meant that it fell outside the class established in section 139A. I reject that proposition. To accept that it would entail reading a word into the statute which is not there, namely “exclusively”. Further, adopting a purposive approach to the construction of s 139A(1), were it otherwise that occupancy for the purposes of the Department of Forestry was sufficient even if there were others would lead to the disastrous consequence that upon the establishment of the Authority, particular land necessary for its operations would not pass to it. I therefore reject that submission by Sukiri as well.
24. What follows from this is that it was unnecessary for the Authority to have a Certificate of Occupancy. The land concerned had on and from 1972 been set aside for the Department of Forestry. Proof perfect of that was the continuous occupancy of the subject land by the Department of Forestry for its purposes. This same fact is common to Tzen Plantations. Following from the coming into force of s 139A pursuant to the Forestry (Amendment No.2) Act 1996, the subject land was the property of the Authority. What follows in turn from that is that the State no longer had any ability under the Land Act to grant the State lease to Sukiri.
25. As to this, it is desirable to say something further about the case Ulelio v Nelulo Land Group, Registrar of Titles and The State (1998) N1699, cited with approval by this court in Tzen Plantations.
26. In Ulelio, certain areas of the sea and seabed along with some small islands were claimed to be the subject of the grant of a Certificate of Title. Justice Woods held that this grant was unlawful, because of the public domain entailed in the sea. It was put nonetheless that the effect of the registration was effective under the Land Registration Act, having regard to Mudge v The State [1985] PNGLR 387, that the registered proprietors of that area of the sea, seabed and minor islands had acquired an infeasible title to those areas. His Honour rejected that submission on the basis, in effect, that a stream could not rise higher than its source, there being no lawful ability to grant title to those areas. A registration itself could not confer title. It was by parity of reasoning and by reference to Ulelio that the Supreme Court in Tzen Plantations held that the registration of the State lease was no answer to the absence of any power whatsoever on the part of the State to grant that State lease.
27. It should be said at once that this is not a case where there was any basis for any conclusion that the fraud exception when indefeasibility found in s 33 of the Land Registration Act. Of course, if there were a controversy as to whether title to the State lease was affected by fraud, there would be an issue for trial. Of course, also, if there were some controversial facts going to whether or not s 139A(1) on its true construction had application, then it would be a matter for trial. This however is just one of those cases where the facts which are uncontroversial: title to the subject land had passed to the Authority before the granting of the purported State lease to Sukiri. In these circumstances, it would in my view be completely pointless and a waste of the valuable resources of the State as well as visiting unnecessary costs on the parties to remit the case to the National Court for trial.
28. In my view, the Objection to Competency of the application for judicial review was always to be regarded as misconceived, especially if, truly, the court was confronted with the starkness of the binding effect of Tzen Plantations to uncontroversial facts. It is true that there was some reference to Tzen Plantations, but I am not persuaded that the learned primary judge was truly confronted with the ramifications of that case to the uncontroversial facts. I very much doubt that the primary judge would have embarked upon a separate consideration of the objection as opposed to dealing directly with the substantive issue in a proceed if her Honour had been so confronted.
29. I should add that, as to the construction of section 139A just recited, not only the Authority, but also the State, embraced that construction.
30. What follows then in my view is that though the appeal should be allowed, there should be no order of the matter to the National Court for trial. Instead, this court should bring the controversy to a close by particular declarations and consequential orders. I would declare that on and from the coming into effect of the Forestry Amended Act No.2 1996, the subject land became vested in the Forest Authority. I would further declare that the grant of the subject State lease to the first respondent Sukiri on 7 February 2012 was a nullity. I would order that the Registrar of Titles forthwith cancel the registration of that State lease. I would further direct that the first respondent forthwith deliver its copy of that State lease to the Registrar of Titles for such cancellation.
31. As to costs, the parties have an outcome which although certain in hindsight was informed by an exchange with the court as to the consequence of the application of the Tzen Plantations to the facts which appeared uncontroversial. Sukiri was given an opportunity confront that. In my view, the just outcome in respect of costs in the circumstances with respect to the appeal is that there be no order as to costs. As to the costs in the National Court, although I am disposed to allow the appeal, it appears to me that the conduct of the parties, particularly in not confronting the primary judge directly with Tzen Plantations is such that costs should just be allowed to lie when they fell in the National Court.
32. ANIS J: I concur with the reasons and the proposed orders of my brother Justice Logan, and I have nothing further to add.
33. COATES J: I agree with the reasons of the President of this court of appeal. I will make this observation. This matter is finalised on questions
of law which when properly applied could never have favoured the first respondent’s aims. It is unfortunate that all too often
statutes are not read or not read closely. And by not doing so, mistakes in the nature of the case be it of the plaintiff or a defendant
are made. Always return to the wording of the statute. No matter how many times you have read it before, always return again to understand
what that statute says. The court repeats to the benefit of practitioners, to not only know the facts of the case before them but
to know the state of law. Only then can proper submissions proceed after of course proper advice is given to a client. It may be
that the first respondent has other remedies against various government entities. That is not the question before us but we were
made aware that money had been paid for this land. I otherwise agree with the orders.
34. LOGAN J: I add that I respectfully agree with the observations of my brother, Coates J. There will be orders accordingly.
Orders
____________________________________________________________________________
Lawyers for appellant: Chillions Lawyers
Lawyers for first respondent: Manase and Co
Lawyers for fourth respondent: Jema Lawyers
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGSC/2026/12.html