SC2872

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA 123 OF 2024 (IECMS)

BETWEEN:
COVEC (PNG) LIMITED
Appellant

AND:
PETER KAMA, ANNA KAMA and MICAH KAMA as JOINT TENANTS OVER SABL 1239C HELA ROADS JOINT VENTURE LIMITED
First Respondents

AND:
ALA ANE – REGISTRAR OF TITLES
Second Respondent

AND:
BENJAMIN SAMSON – SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Respondent

AND:
HON. JOHN ROSSO – MINISTER FOR LANDS & PHYSICAL PLANNING
Fourth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

AND:
JOHN NUKA – For himself and on behalf of the Kunalgapam Clan of Kumai Tribe of Kup, Kerowagi District, Simbu Province
Sixth Respondents

WAIGANI: YAGI J, NUMAPO J, CAREY J
24 FEBRUARY, 31 MARCH 2026

SUPREME COURT – Appeal against National Court Decision – summary dismissal – limitation – new points raised on appeal – constructive and equitable fraud – Registrar of Titles Summons

The Appellant appeals against the decision of the trial judge who summarily dismissed the proceedings. The Appeal lies without leave as the decision of the National Court is final and involves questions of law and/or mixed facts and law. The Sixth Respondents support the appeal by the Appellant. The First, Second, Third, Fourth and Fifth Respondents oppose the Appeal. 

Held

1.	A party cannot mount a fresh jurisdictional objection for the first time on appeal without leave and therefore, in the absence of leave, the objection is not properly before the Court and will not be entertained. Following Independent State of PNG v Maladina [2021] SC2180; Fairweather v Singirok [2013] SC1293.
2.	Where the pleading does not distinctly articulate an equitable cause of action, section 16(1) of the Frauds and Limitation Act applies.
3.	For challenges to a registered State lease on the basis of fraud or tort or procedural irregularity, the cause ordinarily accrues on registration and a claim lodged twelve years post registration is statute barred.
4.	The Registrar of Titles administrative summons to surrender an owner’s copy of title does not determine title, effect cancellation, suspend limitation or revive a time‑barred claim and is immaterial to accrual under section 16(1) the Frauds and Limitations Act.
5.	The Appeal is dismissed in its entirety.
6.	The Appellant shall pay the costs of the First Respondents, Second Respondent, Third Respondent, Fourth Respondent and Fifth Respondent, and the Sixth Respondents to pay its own costs, to be taxed if not agreed. 

Cases cited
Camilus v Mota [2022] SC2210
Fairweather v Singirok [2013] SC1293
Independent State of PNG v Maladina [2021] SC2180
Kandapaki v Enga Provincial Government [2011] SC1140
Mamun Investment Ltd v Koi [2015] SC1409
Porgera Joint Venture v Yako [2008] SC916
Powi v Southern Highlands Provincial Government [2006] SC844
Roman Catholic Archdiocese of Rabaul v Paonga & Ors [2024] SC2674
Tagau v Selon Ltd [2018] SC1755
Timothy & Ors v Timothy [2022] SC2282

Counsel

Mr. W. Mapiso, for the appellant
Mr. C. Gagma, for the first respondents
Ms. S. Nisimi, for the second, third, fourth and fifth respondent
Ms. J. Kare, for the sixth respondents

JUDGMENT

1.	BY THE COURT: This is the decision in the appeal of the whole judgment given by the trial judge on 26th September 2024 styled WS No. 197 of 2020.

BACKGROUND FACTS

2.	On 11th March 2020, John Nuka, in his representative capacity (the Sixth Respondents) filed a Writ of Summons in the National Court. The causes of action were fraud, misrepresentation and illegality, procedural irregularities, breach of fiduciary duties, breach of agreement and negligence. 

3.	The Sixth Respondents also disputed the customary ownership of Portion 1239C, Volume 15, Folio 43, Barawagi, Simbu Province (the Land) which was registered on 11th March 2008 to the First Respondents under a Special Agriculture and Business Lease (SABL). 

4.	The Sixth Respondents claimed that they were customary landowners over the Land and that the SABL was irregularly issued to Peter Kama, Anna Kama and Micah Kama (the First Respondents) which amounted to fraud.

5.	The Land had economic value due to gravel extraction used to rehabilitate the Simbu section of the Okuk Highway. In another proceeding, WS 712 of 2007, the First Respondents sued the Second to Fifth Respondents for trespass and were successful.

6.	In proceeding SCA 16 of 2017, the Supreme Court upheld the ownership of the First Respondents and awarded over K4 million in damages.

7.	The claim founded on fraud was against the First Respondents, Ale Ane in his capacity as Registrar of Titles (the Second Respondent), Benjamin Samson in his capacity as the Secretary for Department of Lands and Physical Planning (the Third Respondent), the Honourable John Rosso in his capacity as Minister For Lands And Physical Planning (the Fourth Respondent) and the Independent State of Papua New Guinea (the Fifth Respondent). There was no claim against COVEC (PNG) Limited (the Appellant).

8.	On 25th April 2023 the First Respondents moved an application to dismiss the proceedings based on the following ground, among others:

7.1	the Section 5 Notice to the State was served outside the time limits prescribed by the Claims By and Against the State Act (CBASA),

7.2	the proceeding being time barred pursuant to section 16 of the Frauds and Limitations Act 1988 (FLA),

7.3	the cause of action disputes customary land ownership which the Court does not have jurisdiction,

7.4	the proceeding should be summarily dismissed for being frivolous, vexatious or an abuse of process for the above reasons, and

7.5	the proceeding should be dismissed for want of prosecution.

9.	On 26th September 2024 the National Court delivered its reserved ruling where the matter was summarily dismissed on the basis that the claim was filed 12 years from the date the cause of action accrued, which was on or around 11th March 2008, and therefore was time barred under section 16(1) of the FLA.

10.	The National Court relied on section 155(4) of the Constitution and Order 12(1) of the National Court Rules (the NCR) as jurisdictional basis to dismiss the entire proceeding.

11.	The Appellant filed this appeal on 3rd October 2024.

ISSUES

12.	The Appellant raised nine (9) grounds of appeal in its submission. They are as follows:

11.1	The Notice of Motion of the First Respondents filed on 25th April 2023 to dismiss the proceedings for statute barred under section 16(1) of the FLA was non-compliant with Order 4, Rule 49(8) of the NCR. The motion cited references to jurisdiction of the Court which were irrelevant. The motion judge should have dismissed the application to dismiss for want of competence and abuse of process however failed to do so which is considered unfair.

11.2	 The cause of action was not based on fraud but constructive fraud or equitable fraud to which section 16 did not apply. Pursuant to section 18 of the FLA, a claim in equity, such as constructive fraud, is not affected by section 16. However the motion judge erred in mixed fact and law in failing to examine the pleadings in order to determine the true nature of the cause of action and the reliefs sought and further proceeded to dismiss the proceedings on the ground of time bar when there was no clear set of facts neither was it a clear-cut case warranting summary disposal of the matter contrary to the principle in Oil Search Limited v Mineral Resources Development Corporation Ltd [2010] SC1022.

11.3	 After reserving judgment on the application to dismiss the proceedings, the Court identified several conflicting Supreme Court authorities on the meaning of fraud under section 33(1)(a) of the Land Registration Act 1981 (the LRA) where the issue of whether section 18 of the FLA applies to constructive fraud cases to render inapplicable the time limit of six years in section 16 of the FLA was not authoritatively decided. Parties did not address the court on the issue. Pursuant to the Constitution sections 59 and 158, the Court should have invited the parties to provide further submissions or arguments on the issue. However, the motion judge erred in law when she failed to conduct the proceedings fairly and failed to give paramount consideration to the dispensation of justice.

11.4	 The motion Judge erred in mixed fact and law when she failed to distinguish the decision in Mamun Investment Limited v Koi [2015] SC1409 on the basis that unlike in that case, in this case, the underlying basis for seeking declaratory relief was based upon serious allegations of non-compliances and or irregularities committed by the Department of Lands and Physical Planning which clearly disclosed a claim in equitable fraud within the definition of ‘other equitable relief’ in section 18 of the FLA.

11.5	 The motion Judge erred in mixed fact and law in wrongly dismissing the claim for being time barred pursuant to section 16 of the FLA when the cause of action based on tort or fraud or constructive fraud accrued on 9th December 2022 when the Registrar of Titles summoned the First Respondents to surrender the Owner’s Original Copy of the State Lease (SABL) for cancellation.

11.6	 The motion judge erred in mixed fact and law when she failed to exercise the discretion of the Court judicially in the interest of justice by refusing the application to dismiss the proceedings in circumstances where:

a.	Given the common knowledge of the topography of the entire Simbu Province and high population density, it is practically impossible for the First Respondents to be issued a SABL title covering customary land area of 16.7 hectares to the exclusion of all other customary landowners including the Sixth Respondents was a material consideration which the motion judge failed to consider;

b.	The evidence of the Sixth Respondents suggested that as customary landowners, they did not transfer their interest in their customary land to the State for a lease-lease back arrangement under sections 11 and 102 of the Land Act 1996 (the Land Act) and therefore the State did not obtain a proper title to transfer it to the First Respondents;

c.	The evidence before the Court suggested and confirmed by the evidence of summons of the Registrar of Title dated 9th December 2022 to the First Respondents that the state lease Volume 15, Folio 43, Portion 1239C SABL was a nullity and no effect in law;

d.	The First Respondents used the void or otherwise fraudulent title to issue proceedings against the appellant in WS 712 of 2007 and obtained judgment of about K4 million against the Appellant;

e.	On 19th December 2022, the First Respondents refused to surrender the title and argued that the Registrar of Titles has no power to cancel the title and preferred the National Court to determine the issue of cancellation of title based on fraud which issue was pending determination at trial;

f.	On the evidence, the substantive issues for determination at trial were whether the SABL titles of the First Respondents should be cancelled on the ground of equitable fraud and judgment obtained by the First Respondents against the Appellant in earlier related proceedings in WS 712 of 2007 and SCA No. 16 of 2017 should be set aside was a substantive issue for trial, and

g.	The identification of a cause of action, identification of the date on which the cause of action accrued and the categorization of the cause of action may be fully ascertained at trial with adequate assistance by counsels on the question of computation of time on the accrual of a cause of action founded in constructive fraud or fraud in equity.

11.7	 The motion judge erred in law in failing to observe the principles of natural justice when she summarily dismissed the proceedings without giving the parties an opportunity to argue on the substantive issues.

11.8	 The motion judge erred in mixed fact and law when she failed to apply the Supreme Court precedent in Camilus v Mota [2022] SC2210 which case was directly on point on all fours and instead relied on irrelevant authorities to summarily dismiss the proceedings.

11.9	The motion judge erred in law when she improperly exercised the inherent regulatory powers of the court under section 155(4) of the Constitution and discretionary powers under Order 12 Rule 1 of the National Court Rules to summarily determine the proceedings when it was not a clear case of incompetence and abuse of process contrary to section 158 of the Constitution.

SUBMISSIONS BY THE PARTIES

13.	The Appellant submits, as a preliminary matter, that it has the requisite standing to bring the present appeal. It argues that the appeal lies as of right under section 4 of the Supreme Court Act because it raises questions of law and mixed law and fact, and that the principle of “sufficient interest” applicable to interlocutory appeals requiring leave does not arise. In this respect, the Appellant contends that the decision in Porgera Joint Venture v Yako (2008) SC 916, relied upon below, is distinguishable, as that authority was concerned with the Court’s discretion to grant or refuse leave to appeal from an interlocutory decision. 

14.	The Appellant submits that it was a party to the proceedings in the National Court and participated actively, including opposing the First Respondents’ application for summary dismissal. It further notes that the National Court ordered it to pay costs of those proceedings, and that the decision to dismiss the matter therefore directly affects its legal interests. 

15.	Additionally, the Appellant avers out that it is the judgment debtor in related proceedings, namely WS 712 of 2007 and SCA 16 of 2017, in which the First Respondents relied upon the same SABL to obtain judgment against the Appellant. 

16.	The Appellant submits that, as observed by the trial judge, an eventual success by the Sixth Respondents on the substantive issues may result in the reconsideration or reversal of the earlier judgment debt of approximately K4 million. It argues that this consequence further underscores that it is directly and significantly affected by the outcome of the substantive issues raised before the National Court. 

17.	The Appellant relies on Kandapaki v Enga Provincial Government [2011] SC1140 to submit that any party to National Court proceedings who is directly affected by the orders appealed from has standing to appeal. It emphasises that the authorities recognise that even non-parties may appeal where they possess a sufficient interest, such as the present Appellant, must have standing to bring the appeal. 

18.	The Appellant submits that the proceedings below concerned Portion 1239C, Las Dombil, comprising 16.7 hectares in the Kup area of Simbu Province, held under a SABL issued to the First Respondents on 11th March 2008. The Sixth Respondents’, as plaintiffs, alleged that they were the true customary owners and that the SABL had been issued without their consent and contrary to sections 11 and 102 of the Land Act. They therefore contended that the lease was void and sought cancellation. 

19.	The Appellant notes that the Sixth Respondents further alleged irregularities, fraud, misrepresentation, negligence and procedural defects on the part of both the First Respondents and the Fifth Respondent in the issuance of the SABL. It is submitted that these allegations included assertions that the State had breached statutory duties owed to customary landowners. 

20.	The Appellant explains that it supported the Sixth Respondents in resisting the First Respondents’ motion for summary dismissal and urged that the serious allegations of illegality relating to the SABL process required determination at trial. Despite this, the National Court summarily dismissed the proceedings under section 155(4) of the Constitution and Order 12 Rule 1 of the National Court Rules, principally on the basis that the claim was time‑barred under section 16(1) of the FLA. 

21.	The Appellant submits that the trial judge erred in invoking section 155(4) of the Constitution and Order 12 Rule 1 of the NCR to summarily dismiss the proceedings. It argues that these sources of jurisdiction were not properly engaged and that established principles governing their use were not considered. It says the judge should instead have proceeded under Order 10 Rule 9A(15), which specifically regulates the summary disposal of proceedings on competency grounds. 

22.	The Appellant contends that Order 12 Rule 1 of the NCR is not a universal source of summary jurisdiction and should not be relied upon in circumstances where another, more directly applicable rule exists. It further submits that the First Respondents’ motion was itself non‑compliant with procedural requirements, including Order 4 Rule 49(8) of the NCR, and therefore should not have been entertained. 

23.	The Appellant argues that the judge erred in finding that the claim was time‑barred under section 16(1) of the FLA. It submits that the underlying claims were founded upon constructive or equitable fraud, and that pursuant to section 18 of the Act, equitable causes of action are not subject to the six‑year limitation period. In support, it relies on Camilus v Mota (supra). 

24.	The Appellant submits that the judge misconstrued Mamun Investment Ltd v Koi (supra) in concluding that time began to run from the date of registration of the SABL in 2008. It asserts that Mamun does not stand for such a proposition in relation to constructive or equitable fraud, nor for claims alleging breach of statutory duties under the Land Act. 

25.	The Appellant further submits that the correct approach, as prescribed in Oil Search Ltd v Mineral Resources Development Corporation [2010] SC1022, requires (a) identification of the cause of action, (b) identification of when it accrued, and (c) categorisation of the cause of action. It argues that this analysis could not properly have been conducted on the motion, particularly given the pleaded allegations of multiple species of wrongdoing. 

26.	The Appellant also contends that the cause of action had not accrued in 2008 because the State’s statutory duty under sections 11 and 102 of the Land Act remained undischarged until 9th December 2022, when the Registrar of Titles issued a summons requiring the First Respondents to surrender the lease for cancellation. It submits that time could not begin to run before the discharge of that duty. 

27.	The Appellant further argues that the defence of limitation was not pleaded in a defence filed in the National Court, and therefore, should not have been determined at the summary stage. 

28.	The Appellant submits that the trial judge, in determining the application for summary dismissal, exceeded the permissible scope of such an inquiry by engaging with issues going to the merits of the substantive claim, including findings on customary landownership, the validity of the SABL, and the credibility of the parties’ respective explanations for their conduct. It contends that such matters were properly for trial. 

29.	The Appellant further submits that the judge failed to invite submissions from the parties on certain issues of law that arose only after the close of submissions, particularly concerning the definition and applicability of equitable fraud, the relationship between section 18 and section 16 of the FLA, and the effect of earlier authorities dealing with fraud under the LRA. It argues that this amounted to a denial of natural justice. 

30.	The Appellant contends that the complexity of the allegations, including assertions of illegality, breach of statutory duties, and potential nullity of the SABL, as well as the possible impact on the earlier multimillion kina judgment, meant that the matter was plainly unsuitable for summary disposal. It submits that the trial judge’s approach therefore constituted an improper exercise of discretion. 

31.	The Sixth Respondents submit that they support the appeal filed by the Appellant. They were the plaintiff in the National Court proceedings.

32.	They note that the trial judge dismissed his proceedings pursuant to section 155(4) of the Constitution and Order 12 Rule 1 of the NCR, on an application by the First Respondents filed on 20th April 2023. According to the Sixth Respondents, the dismissal was in error and the appeal should be allowed. 

33.	The Sixth Respondents submit that they commenced WS 197 of 2020 against the First Respondents, the Appellant, and Second thru Fifth Respondents. They contend that the First Respondents are the purported registered proprietors of SABL Portion 1239C, Volume 15 Folio 53, Millinch Minj, Fourmil Ramu, Simbu Province. 

34.	They assert that the First Respondents fraudulently obtained the SABL on 11th March 2008. 

35.	They allege that the statutory processes under sections 11 and 102 of the Land Act were not complied with and that the lease‑leaseback process was “hijacked, flawed and not followed”.

36.	They further submit that in 2006 the Appellant entered the subject land without consent of the customary landowners and extracted gravel and rock for roadworks, leading the First Respondents to sue the Appellant in WS 712 of 2007. 

37.	The Sixth Respondents indicate that they were never a party to those earlier proceedings. 

38.	They allege that the SABL was part of a sequence of irregular events, including:

(a)	an application for a different portion (1193C) rather than 1239C;
(b)	discrepancies and signatures that appear forged;
(c)	a Land Investigation Report (LIR) that contains inconsistencies, missing signatures, and doubtful genealogical information; and
(d)	a lease‑leaseback agreement allegedly not signed by the State in accordance with sections 10 and 11 of the Land Act.
These matters, they submit, indicate fraudulent acquisition of the SABL. 

39.	The Sixth Respondents submit that although the Notice of Appeal sets out several grounds, they may be condensed into the following principal issues:

i)	Whether the trial judge erred in relying on section 155(4) of the Constitution and Order 12 Rule 1 of the NCR to dismiss the proceedings;

ii)	Whether the trial judge erred in concluding that the claim was statute‑barred under section 16 of the FLA, and in failing to apply section 18 of that Act;

iii)	Whether the trial judge erred in failing to invite submissions on conflicting Supreme Court authorities; and

iv)	Whether allegations of fraud required trial and were unsuitable for summary dismissal. 

40.	The Sixth Respondents submit that the Notice of Motion filed 20th April 2023 was incompetent for failing to invoke a proper jurisdictional basis. 

41.	They contend that section 155(4) of the Constitution does not confer trial jurisdiction but only a remedial, facilitative power relying on Powi v Southern Highlands Provincial Government (2006) SC844 to argue that section 155(4) cannot be used where another law provides an avenue for the relief sought. 

42.	They similarly submit that Order 12 Rule 1 of the NCR is not a standalone basis for summary dismissal and cannot substitute for specific rules such as Order 12 Rule 40 (dealing with dismissal for want of reasonable cause of action, vexatiousness, or abuse of process). 

43.	They argue that the First Respondents’ motion was incompetent for failing to state the jurisdictional basis as required by Order 4 Rule 49(8) and was therefore not capable of supporting dismissal. They cite Roman Catholic Archdiocese of Rabaul v Paonga [2024] SC2674. 

44.	They submit that the trial judge incorrectly invoked section 155(4) and Order 12 Rule 1 rather than applying the appropriate rule, asserting this constitutes an error justifying appellate intervention.

45.	The Sixth Respondents submit that his claim was properly pleaded as one of constructive or equitable fraud and therefore falls within the exception in section 18 of the FLA. 

46.	They argue that the trial judge erred in holding the claim to be statute barred under section 16 of the same Act.

47.	They rely on Camilus v Mota (supra) to submit that constructive fraud is grounded in equity and therefore not subject to section 16(1) of the FLA. 

48.	They also argue that the trial judge failed to properly examine the pleadings to determine the true nature of the relief sought. 

49.	They submit that the trial judge misapplied Timothy v Timothy [2022] SC2282 and failed to engage with conflicting Supreme Court authorities, including Tagau, Wyborn, and Chow v Omba (2026) SC2841. 

50.	They aver that the trial judge, having recognised conflicting authorities, ought to have invited submissions before preferring one line of authority. 

51.	The Sixth Respondents submit that the trial judge identified conflicting Supreme Court authorities on whether constructive fraud falls under section 33(1)(a) of the LRA and on the application of section 18 of the FLA but failed to invite further submissions from the parties. 

52.	They argue that the trial judge’s reliance on authorities not addressed by counsel, and her failure to give the parties an opportunity to respond, amounted to an error of procedural fairness.

53.	The Sixth Respondents submit that allegations of fraud, including constructive fraud arising from irregularities in the SABL process, are inherently unsuitable for summary determination and require trial. He refers to Order 12 Rule 37 of the NCR, which provides that claims alleging fraud ought not to be summarily dismissed. 

54.	They argue that the matters raised including discrepancies in the LIR, potential forgery of signatures, absence of mandatory statutory procedures and the rapid processing of the lease  warranted full evidentiary testing. 

55.	For the foregoing reasons, the Sixth Respondents submit that the trial judge erred in dismissing the proceedings and that the appeal ought to be allowed, the proceedings reinstated, and the matter remitted to the National Court for trial. 

56.	The First Respondents notes that the appeal contains nine grounds and relies on the Appeal Book filed on 19th November 2025 and the Objection Book filed on 7th January 2025. 

57.	The First Respondents further notes that its earlier objection to competency was withdrawn after the full Court advised that the grounds overlapped with substantive issues appropriate for the appeal. 

58.	The First Respondents submits that the underlying National Court proceedings were commenced by the Sixth Respondents as a representative proceeding concerning alleged customary landowners of the Kunalgapam Clan of the Kumai Tribe. 

59.	The Sixth Respondents’ Writ of Summons pleaded multiple causes of action, including fraud, misrepresentation, illegality, procedural irregularities, breach of fiduciary duty, breach of agreement and negligence.

60.	The First Respondents contend that these pleadings were vague, ambiguous and failed to set out material facts constituting actionable allegations. 

61.	The First Respondents emphasise that there was no cause of action pleaded against the Appellant, who it says had no interest in the subject land beyond prior trespass and extraction activities litigated in earlier proceedings. 

62.	The First Respondents outlines that it brought an application on 16th May 2024 to dismiss the entire proceedings based on several grounds:

(a)	failure to comply with section 5 of the CBASA;
(b)	statutory time bar under section 16 of the FLA;
(c)	lack of National Court jurisdiction due to the dispute involving customary land ownership;
(d)	that the proceedings were frivolous, vexatious, and an abuse of process; and
(e)	want of prosecution. 

63.	The First Respondents submits that the trial judge ultimately dismissed the proceedings on the basis that the claim was filed 12 years after the cause of action accrued being the date of SABL registration on 11th March 2008 and was therefore time barred. 

64.	It is further submitted by the First Respondents that the Sixth Respondents accepted the decision in the National court and did not appeal. 

65.	The current appeal is brought by the Appellant, who is a judgment debtor in earlier related proceedings, including WS No. 712 of 2007 and SCA No. 16 of 2017. 

66.	The First Respondents assert that the commencement of WS No. 197 of 2020, one month after the Supreme Court reduced the Appellant’s judgment debt to approximately K4 million, is indicative of an improper purpose aimed at defeating the enforcement of that judgment. 

67.	The First Respondents submits that the Appellant’s argument that the Notice of Motion was incompetent is unfounded.

68.	They further argue that the Motion clearly cited its jurisdictional basis, namely section 155(5) of the Constitution, Order 12 of the NCR and section 16(1) of the FLA. 

69.	Moreover, the First Respondents avers that the Plaintiff and Appellant did not raise any jurisdictional objection in the National Court and that such matters were therefore not before the trial judge. 

70.	The First Respondents contend that this ground is a fresh issue and leave to raise it was not obtained. 

71.	The First Respondents submits that the Sixth Respondents’ claim was not pleaded as constructive or equitable fraud. It asserts that the pleadings spoke only of fraud in tort, misrepresentation and illegality, and that the plaintiff failed to plead the elements of constructive fraud such as undue influence, abuse of confidence or unconscionability. 

72.	Further, the First Respondents claims that the Appellant failed to make proper submissions on section 18 of the FLA, as noted by the trial judge. For this reason, the trial judge correctly applied section 16(1) of the same Act.

73.	The First Respondents submit that although the trial judge observed conflicting authorities regarding section 33(1)(a) of the LRA and constructive fraud, counsel had not raised these issues at the hearing. As such, the trial judge was entitled to return to the issue that was squarely before her, time limitation and determine competency on that basis. 

74.	The First Respondents submit that the trial judge properly found that the plaintiffs did not plead equitable ownership or constructive fraud. It is said that the plaintiffs knew of earlier land dispute resolutions and court proceedings but took no action. The First Respondents refers to recent Supreme Court authority, including Helai v Samson (2024) SC2625, to argue that fraud claims accrue at the time of registration of the title. 

75.	The First Respondents submit that the cause of action accrued on registration of the SABL in March 2008, not on 9th December 2022, when the Registrar issued a summons concerning surrender of title. It argues that any challenge to customary land ownership should have been pursued before the land mediation and local land court processes under the Land Dispute Settlement Act. 

76.	The First Respondents submit that the trial judge correctly addressed all circumstances relied on by the appellant, and that many of those matters were irrelevant to the appellant, which was not privy to the alleged clan ownership issues. 

77.	The First Respondents also maintains that no equitable ownership claim was made in the pleadings. 

78.	The First Respondents submit that the parties were given adequate opportunity to be heard on the Motion. The trial judge properly addressed procedural competency and dismissed the proceeding as time barred.

79.	The First Respondents contend that no breach of natural justice occurred. 

80.	The First Respondents submits that the trial judge noted Camillus v Mota (supra) but correctly identified factual differences. 

81.	In Camilus v Mota (supra), the claim was filed six years after the SABL was issued, in this case the claim was filed after twelve years. It is said that earlier proceedings recognised the First Respondents as the rightful customary owner and that no allegations of fraud against the First Respondents had ever been raised in those proceedings.

82.	The First Respondents submit that the trial judge correctly exercised jurisdiction under s 155(4) of the Constitution and Order 12 Rule 1 of the NCR. It is argued that the Motion expressly sought relief under these provisions and that the judge’s reasoning reflects consideration of the jurisdictional basis. 

83.	The First Respondents submit that the Appellant has repeatedly litigated issues concerning customary ownership of “Las Dombil” or Portion 1239C in multiple proceedings from 2007 to the present. It argues that the appeal is a continuation of such duplicative litigation and constitutes an abuse of process under the principles in GR Logging Ltd v Dotaona (2018) SC1690 and Global Customs & Forwarding Ltd v Samson (2023) SC2428. 

84.	The First Respondents submit that the Appellant lacks standing because it has no claim to customary ownership and was not authorised by the Sixth Respondents to appeal on their behalf. It argues that the Appellant’s only connection to the land is its trespass and extraction activities between 2006 and 2007. 

85.	The First Respondents submit that the Sixth Respondents’ National Court proceeding was incompetent because no valid section 5 notice was given to the State or, alternatively, any such notice was out of time. It relies on National Housing Corporation v Niugini Building Supplies Ltd (2024) SC2605. 

86.	The First Respondents submit that the appeal should be dismissed, declaring the Appellant a vexatious litigant in light of its history of repeated litigation concerning the same land and issues. The First Respondents seeks indemnity costs and an order that the security for costs of K80,000 already paid into the National Court Trust Account be released to its lawyers. 

87.	The Second through Fifth Respondents submit in response to the Notice of Appeal filed on 3rd October 2024, maintaining that the trial judge’s orders dismissing WS No. 197 of 2020 should be upheld. 

88.	The Second through Fifth Respondents submit that the appellant’s contentions concerning alleged reliance on a wrong jurisdictional basis (including section 155(4) of the Constitution, Order 12 Rule 1 of the NCR, and non‑compliance with Order 4 Rule 49(8)) of the NCR were not raised in the National Court and are new points on appeal. 

89.	They rely on Independent State of PNG v Maladina [2021] SC2180 and Fairweather v Singirok [2013] SC1293 to submit that the Supreme Court takes a “strict” or “very strict” approach to new points: either such points are absolutely precluded, or leave is first required; no leave has been sought or granted. The arguments are therefore said to be not properly before the Court. 

90.	The Second through Fifth Respondents submit that the pleadings impugn the issue of the SABL on procedural/statutory grounds and do not allege actual dishonesty; the cause of action is therefore one of constructive fraud as explained in Tagau v Selon Ltd [2018] SC1755.

91.	They submit that, in light of Timothy v Timothy (supra), only actual fraud by the registered proprietor or agent can defeat indefeasibility under section 33(1)(a) of the LRA. 

92.	They submit that, whether characterised as actual fraud or constructive fraud, the proceeding is barred under section 16(1) of the FLA, as the cause of action accrued upon registration of the SABL in March 2008 and the claim was filed 12 years later. 

93.	They contend that the trial judge’s approach to accrual and limitation is correct. 

94.	Further and in the alternative, they submit that equitable relief would be barred by laches given the extended delay, intervening proceedings, and prejudice. 

95.	They rely on Tagau that undue delay may disentitle a claimant to equitable relief even if constructive fraud is alleged. 

96.	In equity, the doctrine of laches operates to bar relief where a claimant has delayed unreasonably in asserting a right, and that delay has caused prejudice to the opposing party. The focus is not merely on the passage of time but on whether the claimant, with knowledge of the relevant facts, failed to act with due diligence, thereby rendering it inequitable for the Court to grant relief.

97.	Laches is concerned with the justice of the case in light of the delay. Prejudice may arise through the loss of evidence, the entrenchment of legal or commercial positions, or the reliance placed on the stability of a registered title over an extended period. Even where allegations of fraud or irregularity are raised, equity requires prompt assertion of those claims, and prolonged inaction may itself disentitle the claimant to equitable remedies.

98.	Accordingly, in matters involving land registration, particularly where several years have passed and rights have crystallised through litigation or administrative processes, the doctrine of laches reinforces the public interest in finality.

99.	The Second through Fifth Respondents submit that the Registrar of Titles’ administrative summons requiring surrender of the owner’s copy of title is not material to the limitation question or to the competency of the proceeding. The accrual of the cause of action in 2008 is said to be unaffected by an administrative step taken in 2022. 

DETERMINATION
100.	The Appellant appealed on nine grounds, broadly directed to (i) jurisdiction/competency; (ii) limitation and characterisation of the claim; (iii) procedural fairness; and (iv) the exercise of discretion. The First–Fifth Respondents oppose the appeal; the Sixth Respondents supports it.

101.	Having considered the submissions as outlined in the paragraphs above, we dismiss the appeal for the reasons that follow. 

102.	We proceed on threshold grounds and do not determine wider merits questions unnecessary to the disposition. 

103.	The proceeding concerns Portion 1239C, Volume 15, Folio 43 (Las Dombil) in Simbu Province, granted as a SABL to the First Respondents on 11th March 2008. The Sixth Respondents commenced WS No. 197 of 2020 seeking, among other things, cancellation of the SABL for alleged fraud/irregularity, contending that the true customary owners had not consented in accordance with section 11 and 102 of the Land Act. 

104.	Related litigation between the First Respondents and The Appellant concerning trespass and conversion resulted in an award of damages, reassessed to about K4 million by the Supreme Court in SCA No. 16 of 2017 (Covec (PNG) Ltd v Kama [2020] SC1912). The present proceeding was filed the following month. 

105.	The appeal raises four dispositive issues:
•	Whether the Appellant can, for the first time on appeal, contend that the National Court invoked a wrong jurisdictional pathway (section 155(4) of the Constitution and Order 12 Rule 1 of the NCR) rather than Order 10 Rule 9A) and that the motion was incompetent for want of compliance with Order 4 Rule 49(8) of the NCR. 
•	Whether the claim was time‑barred under s 16(1) of the FLA, or falls within section 18 of the FLA as an equitable claim; 
•	Whether accrual can be re‑dated to 9th December 2022 (Second Respondent’s summons) rather than March 2008 (registration). 
•	Whether the Second Respondent’s administrative summons to surrender the owner’s copy of the SABL affects limitation or competency. 
106.	We address each in turn. 

107.	A party may not generally raise new points on appeal that were not advanced below. The Supreme Court has articulated two strict approaches: (i) a very strict approach under which new points are simply not permitted; and (ii) a strict approach under which leave is required and, if granted, the Court may entertain the point. Either way, leave is the gateway. No leave was sought here. 

108.	An appellate court interferes with discretionary case management or summary dismissal orders only where the trial judge acted on a wrong principle, misapprehended facts, failed to consider relevant matters, considered irrelevant matters, or the decision is plainly unjust. This restraint is reflected in the First Respondents’ submissions and accords with settled authority.

109.	The Appellant’s notice of appeal grounds 3.1 and 3.9 argue that the National Court relied on the wrong jurisdictional pathway (section 155(4) of the Constitution and Order 12 Rule 1 of the NCR), and that the motion was incompetent for failure to state a concise jurisdictional basis under Order 4 Rule 49(8) of the NCR. 

110.	The First Respondents and Second to Fifth Respondents submissions respond that these contentions were not raised below, are new on appeal, and no leave has been sought. They rely on Independent State of PNG v Maladina and Fairweather v Singirok (supra), as encapsulating the strict/very‑strict approaches. We accept that summary. 

111.	On either approach, the jurisdictional complaints are not properly before us, no application for leave has been made, and none is granted. 

112.	In consequence, we decline to entertain Grounds 3.1 and 3.9 and therefore that holding suffices to remove those contentions from the appeal. 

113.	The National Court dismissed the proceeding as being time-barred, finding the cause accrued no later than registration in March 2008, thereby engaging section 16(1) of the FLA when the claim was commenced in March 2020. 

114.	The First through Fifth Respondents support that conclusion, highlighting that the pleading did not articulate actual dishonesty and, at best, challenged procedural/statutory regularity in the lease grant, a paradigm of constructive fraud cases noted in Tagau v Selon Ltd (supra). 

115.	They further submit that only actual fraud can defeat indefeasibility under s 33(1)(a) LRA per Timothy v Timothy (supra). 

116.	We do not need to resolve the broader constructive vs actual fraud controversy to dispose of this appeal. 

117.	The learned trial judge selected limitation as a threshold competency issue and dismissed on that basis. The First through Fifth Respondents’ submissions demonstrate a tenable pathway to that result: (i) on the face of the pleadings, the claim does not squarely engage an equitable cause of action immune from section 16 by force of section 18 of the FLA; and (ii) in any event, the claim was filed twelve years after accrual (registration). Those points were squarely before the motion or trial judge. 

118.	The Appellant’s attempt to re‑characterise the claim as one in constructive/equitable fraud thereby invoking s 18 of the FLA, or to shift the accrual date to 9th December 2022 upon the Second Respondent’s summons, does not surmount the threshold problem.

119.	The pleading did not distinctly articulate an equitable cause and, even if it did, the long delay weighs heavily against equitable intervention. On the material before the National Court, the limitation route was properly open and it remains so on appeal. 

120.	The Appellant urges that accrual should run from 9th December 2022, when the Second Respondent summoned surrender of the owner’s copy. The Second to Fifth Respondents’ answer that such a summons is an administrative step that does not determine title, does not cancel registration, does not suspend limitation, and cannot revive an otherwise statute‑barred claim. We agree. The summons does not alter the accrual analysis.

121.	In our view, the Appellant’s remaining argument in relation to natural justice, failure to invite submissions on conflicting authorities and challenges to the exercise of discretion do not warrant interference. 

122.	The onus is on parties to advance their case and not for the trial judge to make the case for the parties. We are not persuaded that there was any identifiable error in the manner in which the trial judge conducted the matter and natural justice was afforded the parties per Section 59 of the Constitution. 

123.	The First Respondents indicates that parties were heard inter partes on limitation, the trial judge selected time bar as a preliminary competency issue and exercised discretion in making a decision. 

124.	The Appellant has not presented any evidence that demonstrates prejudice and absent concrete prejudice, appellate intervention is unwarranted. 

125.	We conclude there is no further analysis necessary. 

CONCLUSION
126.	Section 16(1) of the FLA is the ground on which jurisdiction is to be exercised and jurisdiction was exercised under Order 12 Rule 1 of the NCR.

127.	The pleading does not clearly disclose a cause of action engaging section 18 rather than section 16 of the FLA, and the trial judge was therefore correct to construe it as she did. No identifiable error has been demonstrated.

128.	Where there is conflicting authority, a trial judge is entitled to adopt the authority considered applicable, and no error arises from that choice alone.

129.	Absent an identifiable error by the trial judge, it is neither logical nor probable that an appellate court would disturb the judgment or intervene.

130.	For the foregoing reasons, the appeal must be dismissed.

ORDERS
131.	   The Court orders:

1.	The Appeal is dismissed in its entirety.
2.	The Appellant shall pay the costs of the First Respondents, Second Respondent, Third Respondent, Fourth Respondent and Fifth Respondent and the Sixth Respondents to pay its own costs, to be taxed if not agreed. 
Ordered Accordingly
Lawyers for the appellant: Guardian Legal Services
Lawyers for the first respondents: Gagma Legal Services
Lawyer for the second, third, fourth and fifth respondent: Solicitor General
Lawyers for the sixth respondent: Kare and Associates Lawyers