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Bewani Oil Palm Plantations Ltd v Allen [2017] PGNC 191; N6833 (21 July 2017)

N6833

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 283 OF 2016


BETWEEN:
BEWANI OIL PALM PLANTATIONS LIMITED
First Plaintiff


AND:
BEWANI PALM OIL DEVELOPMENT LIMITED
Second Plaintiff


AND:
MINISTER FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING HON. BENNY ALLEN, MP
First Defendant


AND:
ACTING REGISTRAR OF TITLES – MR YANJOL APIN
Second Defendant


AND:
SURVEYOR GENERAL FOR THE DEPARTMENT OF LANDS & PHYSICAL PLANNING – MR CHRIS MANDA
Third Defendant


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


AND:
OSSIMA RESOURCES LTD
Fifth Defendant


Waigani: Nablu, J
2017: 22 May
21 July


JUDICIAL REVIEW – decision of the Minister for Lands and Physical Planning – grant of State Lease – Special Agricultural and Business Lease – approval of subdivision of land – s. 130, Land Act – process of subdivision of land pursuant to a State Lease – application for judicial review granted


Cases cited:
Papua New Guinea Cases


Avia Aihi v. The State [1981] PNGLR 81
Kekedo v. Burns Philip Pty Ltd [1988-89] PNGLR 122
Ombudsman Commission v. Peter Yama (2004) SC 747


Overseas case cited


Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 233


Counsel:


J. Brooks, for the First Plaintiff
P. Harry, for the Second Plaintiff
E. Bua, for the First, Second, Third & Fourth Defendant
L. Tangua, for the Fifth Defendant


21 July, 2017


1. NABLU, J: Bewani Oil Palm Plantations Limited and the Bewani Palm Oil Development Limited were granted leave to review the decision of the Minister for Lands and Physical Planning to grant a State Lease for land described as Portion 163C, Milinch Bewani, Vanimo, Sandaun Province to Ossima Resources Limited on 28th January 2011. The plaintiff also seeks to review the decision of the Registrar of Titles to cancel the title on 12th May 2011 and then later restore the title to Ossima Resources, the fifth defendant on 26th February 2016.


2. The plaintiff relies on their notice of motion filed on 18th July 2016 and seeks orders in the nature of certiorari to quash those respective decisions. They also seek a mandamus order to compel the fifth defendant to deliver up the copy of their State Lease for Portion 163C forthwith for cancellation pursuant to Section 160 and 161 of the Land Registration Act and costs to be paid jointly and severally by all defendants.


3. The plaintiff filed and relied on the following affidavits;


  1. Lip Hian Tee filed on 18th May 2016;
  2. Jason Brooks filed on 7th July 2016 and 27th February 2017;
  1. Bob Namah filed on 2nd August and 28th October 2016;
  1. Kelvin Tan filed on 14th September 2016;
  2. Jim Sumo filed on 25th October 2016;
  3. Felix Piou filed 25th October 2016;
  4. Joe Samou filed 25th October 2016;
  5. Ignatius Bawi filed on 26th October 2016; and
  6. Noel Ambiwese filed on 27th October 2016.

4. In response, the respondents filed and relied on the following affidavits;


  1. Charles Ossi filed on 21st September, 14th October 2016 and 27th February 2017;
  2. Yanjol Apin filed on 28th September 2016;
  1. Luther Sipison filed on 28th September 2016;
  1. Jonathan Imabus filed on 23rd February 2017
  2. Philip Nipe filed 23rd February 2017;
  3. Peter Su filed on 23rd February 2017; and
  4. Palio Waiya filed on 23rd February 2017.

5. The background facts are not in great dispute. The second plaintiff was granted a State Lease Volume 15 Folio 41 for land described as Portion 160C, Milinch Bewani, Vanimo Sandaun on 17th July 2008. The total land area was 139,909 hectares. The lease was issued in accordance with a registered survey plan catalogue number 1/130. The second plaintiff is a duly incorporated and registered company whose shareholding consists of four companies which represent 124 incorporated land groups from the Bewani area of Vanimo District.


6. A Forest Clearance Authority was issued by the Papua New Guinea Forest Authority in 2009 for the entire land area and the second plaintiff intended to use Portion 160C for a large scale oil palm and associated infrastructure project.


7. The second plaintiff then embarked on an oil palm plantation project which was authorized by the National Government. The first plaintiff was appointed the developer of the project. A project agreement was entered into between the plaintiffs and the State on 28th October 2010. Consequently, the first plaintiff then subleased Portion 160C from the second plaintiff on 16th November 2010 for the entire 139,909 hectares of land (Portion 160C). The oil palm project commenced in January 2011.


8. Then on 26th April 2010 a letter allegedly authored by the Minister for Forests was addressed to the Managing Director of PNG Forest Authority and copied to the Secretary for Lands and Physical Planning. The letter purportedly authorized the subdivision of Portion 160C and allowed Ossima Resources Limited to obtain a State Lease over a piece of land within Portion 160C. The Minister for Forests at that time was Hon. Belden Namah. The Surveyor–General then wrote to Acting Secretary for Lands and Physical Planning on 16th May 2011 advising him that there was an application for subdivision of Portion 160C. The fifth defendant was granted a State Lease, Volume 18 Folio 205 for land described as Portion 163C, Milinch Bewani on 28th January 2011.


9. It is not disputed that the land described as Portion 163C is contained within the perimeter of Portion 160C. When the first plaintiff became aware of the existence of the State Lease for Portion 163C, they raised the issue with the then Secretary of the Department of Lands and Physical Planning, Mr Romily Kila-Pat. After making some enquiries, the matter was settled when the Registrar cancelled the fifth defendant’s title (State Lease Volume 18 Folio 205) on 12th May 2011. The fifth defendant was informed of the cancellation by way of a letter from the Department of Lands.


10. Then a Commission of Inquiry was established by the National Government. The purpose of the inquiry was to make inquiries, findings and recommendations in regard to the grant of a Special Agriculture Business Lease (SABL) by the Department of Lands to the second plaintiff in respect of Portion 160C. The Commission of Inquiry concluded their inquiry and published a Final Report on 24th June 2013.


11. The fifth defendant then applied to the Secretary for Lands & Physical Planning to restore the cancelled State Lease for Portion 163C. After considering the application, the Registrar of Titles conceded to the fact that the process under the Land Registration Act was not complied with during the cancellation of the fifth defendant’s State Lease. Therefore the State Lease was then restored on 26th February 2016. The restoration of the fifth defendant’s title for Portion 163C was made ‘administratively’.


12. The practical difficulty of this decision was that it was then evident that there were duplicate State leases over the same area of land. In other words, the area of land covered under the two State Leases overlapped.


13. The main issue before this Court for determination is; which State Lease is valid? In determining that issue, the Court needs to consider other issues such as whether the subdivision of Portion 160C was done pursuant to the Land Act? Who is legally authorized to apply for subdivision of the land subject of a State Lease?


14. The grounds of review under the Statement of Support pursuant to Order 16 Rule 3(2)(a) of the National Court Rules can be concisely summarized as follows;


  1. the decisions were made arbitrarily and contrary to the provisions of the relevant law;
  2. the plaintiff’s right to natural justice was denied;
  1. the decisions were unreasonable; and
  1. the decisions were tainted with actual and a reasonable apprehension of bias.

15. Both plaintiffs’ primary contention is that the grant of the State Lease for Portion 163C was over the same land area as their State Lease for Portion 160C. The registered proprietor for Portion 160C is the second plaintiff. The first plaintiff is the sub-lessee of Portion 160C.


16. From the time these proceedings commenced up to the time of the hearing, the State had defended the administrative decisions of the Minister for Lands and Physical Planning or his delegate. However at the eleventh hour, and might I add at the bar table, Mr Bua of counsel for the State conceded to the first and second plaintiff’s application for judicial review. He submitted that the State agreed with the plaintiff’s case and that the procedure under Section 130 of the Land Act was not complied with.


17. This concession by the State’s counsel than prompted Mr Tangua of counsel for the fifth defendant to be extremely concerned about whether Mr Bua had sought instructions because the evidence before the Court was not consistent with what was submitted by counsel. This prompted some objections by Mr Brooks of counsel for the first plaintiff. After some exchange between the bar and the bench, the Court then proceeded on to hear the fifth defendant’s submissions.


18. The fifth defendant’s argued that the subdivision of Portion 160C in order to create Portion 163C was done lawfully. They submitted that, the crucial issue for determination was the validity of the letter seeking subdivision by Hon. Belden Namah when he was the Minister for Forests in April 2010. The fifth defendant vehemently argued that the letter was the basis of the subdivision. Mr Tangua submitted that Hon. Belden Namah was authorised to act for the second plaintiff. The fifth defendant did not have anything to do with the request for subdivision.


19. The fifth defendant through counsel maintained that even though Hon. Belden Namah was no longer the director or shareholder of the second plaintiff, he was still influential and was able to somehow convince the Department of Lands officials to comply with his request for subdivision. Furthermore, the fifth defendant submitted that Hon. Belden Namah was instrumental in the initial set up of the second plaintiff company. Following the incorporation of the company it is alleged that, Hon. Belden Namah then sold the company to one Jimmy Tse. Despite Hon. Belden Namah’s removal as a director or shareholder of the company, it was submitted that he was still influential and played a key role in the operation and running of the second plaintiff company.


20. In relation to the SABL for Portion 160C, the fifth defendant urged this Court to quash the decision to grant Portion 160C to the second plaintiff.


21. I will deal with the first ground of review by considering the question posed; that is, whether the land was subdivided in accordance with the provisions under the Land Act.


22. The plaintiff contends that Section 130 of the Land Act was breached when the subdivision of Portion 160C was undertaken. The plaintiff argued that this is a fundamental breach of procedure. Firstly, the first and second plaintiff denied that they applied for or authorized Hon. Belden Namah to make an application to subdivide Portion 160C. Secondly, the Surveyor General did not have the power to subdivide the land or approve the subdivision of land. Section 130 states that the power to approve the subdivision of land pursuant to a State Lease is vested in the Minister.


23. The Surveyor General does not have the power to subdivide the land and he therefore, acted ultra vires. Thirdly, according to Section 130 of the Land Act. The title for the land subject of subdivision is required to be surrendered to the Department of Lands. It was submitted that the title for Portion 160C was never surrendered to the Department of Lands as required by Sections 130(5) and (6) of the Land Act.


24. The fifth defendant through counsel submitted that the plaintiff did consent to the application for subdivision. The subdivision was based on the letter from Hon. Belden Namah MP, the Minister for Forest (as he then was). Evidence of the letter dated 26th April 2010 is contained in the Review Book Vol. 3, pages 554-555. It was submitted that the letter was intended to resolve a conflict between landowners in regard to their grievances over their portion of land which was contained in Portion 160C (see Review Book Vol. 2 pages 474-493 the Final Report on the Commission of Inquiry into the Special Agriculture and Business Lease SABL). Mr Tangua of counsel for the fifth defendant submitted that the crucial issue for determination is the authenticity of the letter dated 26th April 2010. He further submitted that the letter was signed by the Hon. Belden Namah and that it is not disputed. The signature is the same as the one found on the Companies Rules Form 4 (see Review Book Vol 3 page 871).


25. He also submitted that Mr Namah did not deny that he was the author of the letter and added that if the letter was not genuine, Mr Namah would have lodged a criminal complaint for forgery of his signature. Mr Tangua submitted that the plaintiffs have not adduced evidence to disprove the authenticity of the letter either through forensic analysis or a handwriting expert’s opinion. Furthermore, the letter was written on the official letterhead of the Minister for Forests and not on a private letter head and this, according to the fifth defendant proves that the letter was in fact from the Hon. Belden Namah.


26. The fifth defendant also submitted through counsel that the second plaintiff was incorporated on 3rd March 2008 and was the leaseholder of Portion 160C. They argued that the Hon. Belden Namah was the sole shareholder for the second plaintiff. The directors were Bob Namah, John Wuni and Abrose Bewa Tou. It is argued that the second plaintiff was Hon. Belden Namah’s private company. On 22nd April 2008, Hon. Belden Namah then sold the company to Jimmy Tse. Jimmy Tse became the sole shareholder and the company directors changed.


27. On 17th July 2008 the Special Agriculture Business Lease (SABL) was granted to the second plaintiff. It is submitted that this was done when the second plaintiff was solely owned by a foreigner. According to Mr Tangua, this was a clear violation of the Land Act. However, he did not refer the Court to any specific provision of the Land Act that was allegedly breached. The fifth defendant also argued that the second plaintiff was sold to Jimmy Tse after its incorporation and therefore it was logical to assume that the company was not properly set up, it lacked an office, a letter-head, staff and assets. The fifth defendant submitted that the purported lack of assets and facilities could only mean that the sale of the company was because of the SABL over Portion 160C.


28. It was also submitted that the SABL over Portion 160C was sold to Jimmy Tse as confirmed by the Commission of Inquiry Report (see Review Book Vol. 02 page 477). It was further submitted that despite the sale to Jimmy Tse, Hon. Belden Namah still maintained control over the company and applied for a Forest Clearance Authority, had liaised with the Department of Lands, the National Forest Authority and the Department of Agriculture and Livestock and the other necessary stakeholders. It was submitted that throughout this whole time, Hon Belden Namah still held himself out as the company owner regardless of the sale.


29. It is necessary for me to set out the relevant section of the Land Act which relates to subdivision of land. Section 130 of the Land Act states that:


130. Approval of Subdivision


(1) A lessee may apply to the Minister for approval to subdivide the land included in his lease.

(5) If the Lessee –

he may surrender his lease, and in that case he shall be granted a new lease over each of the subdivided portions of the land.

(6) A surrender of a lease under Subsection (5) –

(7) A new lease granted under this Section shall-

30. It is also necessary for me to set out the contents of the purported letter below;


MINISTER FOR FORESTS


Date: 26th April 2010


The Managing Director

Papua New Guinea Forest Authority

National Forest Services

P.O Box 5055

BOROKO,

National Capital District


Attention: Forest Clearance Authority Officer


RE: APPROVAL OF SUB DIVISION SURVEY AND GRANT OF CONSENT –OSSIMA RESOURCES LIMITED AGRICULTURE AND LIVESTOCK DEVELOPMENT PROPOSAL FOR FOREST CLEARANCE AUTHORITY [FCA] OSSIMA TIMBER AREA –VANIMO SANDAUN PROVINCE.


I acknowledge the letter with the Project Proposal dated 18th April 2010 from Ossima Resources Limited and including the eminent assistance from the Department of Agriculture & Livestock in consultative work done in preparation for the Forest Clearance Authority [FCA] certification.


I am satisfied with the Project Proposal and the relevant documents that were submitted for my consideration and approval.


In my Official capacity as the Minister for Forest and the Member for Vanimo Green Electorate and more importantly the local leader in the Bewani Palm Oil Development Project Area.


I hereby in writing give my Approval to Conduct the SUB DIVISION SURVEY of the 38,000 hectares from Portion 160C Milinch Oenake SE, SW & Bewani NE, NW Fourmil Vanimo & AITAPE with the total land area of 139,909 hectares. The Survey Plan Registered on Catalogue Number 1/130 endorsed on 01/07/2008.


And subsequently, the Ossima Resources Limited are Granted the Approval to develop the 38,000 hectares of forest land to extend the current Ossima Beef Project.


On completion of the Sub Division Survey and the related lease arrangement the Ossima Resources Limited is to submit their FCA application to the PNG Forest Board for due consideration and approval.


For your actions,


[signed]

HON. BELDEN NAMAH, MP.

Minister for Forest & Member for Vanimo-Green.


Cc: The Secretary

Department of Lands & Physical Planning

Attention: Surveyor General


Cc: Director-Project Allocations

PNG National Forest Authority

Attention: Mrs Magdalene


Cc: Manager Project Allocations

PNG National Forest Authority

Attention: Lyall Umbo [Mr]


Cc: Managing Director

Ossima Resources Limited

Attention: Charles Ossi [Mr]


31. Section 130 of the Land Act provides for the process for approving subdivision of land subject of a State Lease. The procedure is initiated by the lessee. The lessee applies to the Minister for approval to subdivide the land. The application for subdivision must be in writing, and is accompanied by a plan of the proposed subdivision and a physical planning permission pursuant to the Physical Planning Act 1989 if applicable. Upon receipt of the application, the Minister has the discretion to approve or refuse the application. The Minister does not have the power to refuse an application which is accompanied by a planning permission for any physical planning reason. If the application is approved, the Minister is obliged to provide a written notification specifying the reservations, covenants, conditions, fees and deposits for the newly subdivided portions of land that may be applicable.


32. After payment of the land rental fees, and any fees or deposits in regard to the new leases and acceptance of any specified reservations, covenants, conditions and provisions, the lessee then surrenders his lease. Following the surrender then the lessee is granted new leases over each subdivided portions of the land. The surrender of a lease is made within 30 days after the notification. The Minister has the discretion to extend the time. The surrender of the lease has effect from the date the new State Leases commence. A new lease granted under Section 130 is the same type of lease as the surrendered lease, unless the Minister otherwise directs. The rights of the lessee in respect of improvements on the land are preserved. The period of the subdivided lease and the date of expiration is the same as the surrendered lease, unless another expiry date is specified by the Minister or the Land Board. Where another date is specified, that date should be specified in the Minister’s notice.


33. Now turning to the issues in the present case, the first issue to be determined is whether the lessee that is the second plaintiff has applied for the subdivision of the land included in their State Lease for Portion 160C.


34. It is not disputed that the second plaintiff is the registered proprietor of the State Lease and the first plaintiff is the sublessee of Portion 160C. Mr Brooks of counsel for the first plaintiff argued that the present application for judicial review relates to the grant of the State Lease for Portion 163C and not the grant of the State Lease for Portion 160C to the second plaintiff. Throughout Mr Tangua’s submission he raised the argument that the grant of the SABL for Portion 160C was illegal and this Court should exercise its inherent powers under Section 155(4) of the Constitution to set aside the State Lease for Portion 160C.


35. At the outset, I find that these submissions are misconceived and without merit. This application for judicial review for which leave was granted was to review the decision of the Minister to grant the State Lease to the fifth defendant for Portion 163C and not Portion 160C. I cannot see how Mr Tangua can raise those issues in these proceedings. Firstly, leave was not sought nor granted to review the decision to grant a SABL to the plaintiffs for Portion 160C. Furthermore, the notice of motion which forms the basis for the application for judicial review does not specify the relief the fifth defendant is seeking. Secondly, it was always open to the fifth defendant to challenge the decision to grant a State Lease for Portion 160C in their own judicial review proceedings. It is an option that was open to them however, in the evidence before me, I am unable to find any evidence of whether they did in fact exercise their right. It is obvious that they have slept on their rights and are therefore, precluded from raising these issues in this application for review.


36. Furthermore, whilst I accept that the Court has inherent powers under Section 155(4) of the Constitution to make orders that will do justice in the circumstances of a case. Such exercise of discretion is made in order to protect a primary right that has expired and upon exceptional circumstances (see Avia Aihi v. The State [1981] PNGLR 81). Mr Tangua seems to advance the argument that the fifth defendant’s land was unlawfully acquired and sold by the Hon. Belden Namah and the second plaintiff company without the customary land owner’s consent. Therefore, the Court should exercise its’ powers pursuant to Section 155 (4) of the Constitution to set aside the State Lease for Portion 160C.


37. In my view there are two great problems with the fifth defendant’s argument. First, the fifth defendant is a duly incorporated company, who is a separate legal entity, a corporate vehicle clearly is not a customary land owner whose rights and interest in traditional land may have been adversely affected. Secondly, the primary rights and interest of a legal person albeit a company does not have the same primary rights or interest that a traditional land owner would have, that require protection pursuant to Section 155(4) of the Constitution. Even if I am wrong, in the evidence before me, I find that there are no exceptional reasons why this Court should exercise its inherent powers in favour of the fifth defendant to set aside the SABL granted to the second plaintiff pursuant to Portion 160C. Clearly, the fifth defendant’s submissions in this respect are flawed and I reject them accordingly.


38. Section 130 of the Land Act is clear, the lessee has the discretion to apply to the Minister to subdivide the land included in his lease. It is not disputed that the lessee and the sublessee did not apply for subdivision. There is no evidence to prove that they applied for the subdivision.


39. The fifth defendant argued that the letter from the Hon. Belden Namah formed the basis of the application to subdivide. These submissions are not convincing at all. The registered proprietor is Bewani Palm Oil Development Ltd and not the Hon. Belden Namah, Minister for Forests (as he then was).


40. There are some serious issues in regard to the letter which I need to point out. These issues support the finding that this letter is not authority for the application to subdivide and also that it cannot form a valid application pursuant to Section 130 of the Land Act.


41. The letter was purportedly written by Hon. Belden Namah as the Minister for Forests and not the Managing Director of the second plaintiff company. The letter is addressed to the Managing Director for the Papua New Guinea National Forest Services and not the Minister for Lands who is the lawful authority to approve applications for subdivision pursuant to Section 130 of the Land Act.


42. The Hon. Belden Namah purportedly approved the subdivision survey in his official capacity as the Minister for Forests and the Member for Vanimo Green Electorate. He is clearly not holding himself out as the lessee of the land when he purportedly wrote the letter. The fifth defendant submitted that there is no evidence that Hon. Belden Namah did not write the letter. In my view, just because the plaintiff has not filed evidence disproving the genuiness of the letter does not make the letter valid. There is no evidence by the Hon. Belden Namah that the letter was written by him. The letter is also hearsay evidence and not admissible. Notwithstanding, the absence of direct or cogent evidence to prove that Hon. Belden Namah wrote the letter. The fact remains that the application to subdivide land under a State Lease is the sole prerogative of the lessee. In this case both plaintiffs deny making such an application. The fifth defendant’s submission is mischievous and flawed, I reject the submissions.

43. There is no evidence to prove that the first or second plaintiff applied to subdivide the land. Belden Namah was not the Chairman or Managing Director of the second plaintiff at the time the letter was written. I find that he was not a company official at the time the letter was written. I also find that he was not authorized to act for or on behalf of the second plaintiff who is a separate legal entity, a registered company who is a distinct entity from the office of the Minister for Forests.


44. The fifth defendant’s submitted that the company was sold to one Jimmy Tse but that the Honourable Minister (as he then was) was still controlling the company is in my view illogical and nonsense.


45. The law is clear; a lessee may apply for subdivision to the Minister pursuant to Section 130 of the Land Act. In my view, it would be dangerous to accept the fifth defendant’s submissions, this would result in anybody other than the registered lessee authorizing subdivision of land which is not even under their State lease. Furthermore, in the affidavits of Luther Sipison and Yanjol Apin, they state that the authority for the subdivision of the land is this letter (see pages 503 and 514, Review Book Volume 2). This is clearly wrong. Both persons occupying very senior positions in the Department of Lands that is, the Acting Secretary for Lands and acting Registrar of Titles. I am astounded at the fact that they are unable to distinguish between who is a lessee and who is not. They only need to refer to a copy of the State Lease to establish who the Lessee of Portion 160C is. I uphold the plaintiffs’ submissions and reject the fifth defendant’s submissions.


46. Even if I am wrong, there is no evidence that the process under Section 130 was adhered to. There is no evidence that the Minister notified the lessee of his decision to approve the subdivision (Section 130 of the Land Act). It is mandatory for the Minister to notify the lessee. Section 130(5) requires the lessee to pay all the rent due, accept the reservations covenants and provisions specified in the Minister’s notice and pay the fees and deposits before the grant of the new leases. There is simply no evidence to show that the statutory process was followed.


47. Furthermore, it is mandatory that the lease is surrendered within 30 days after the date of notification of approval of subdivision (Section 130(6) of the Land Act). This requirement has a practical purpose and that is to ensure that the lessee brings in the old lease so that the new leases for the subdivided land can be granted. This provision also acts as a check and balance to ensure that the lessee did in fact apply for the subdivision of the lease. Furthermore, it eliminates the problem of duplicity of title which is the very problem we are faced with in the present case.


48. There is clear evidence that the mandatory prescribed process under Section 130 of the Land Act was breached as contended by the plaintiff. The plaintiff has proven this ground of review.


49. The second ground of review is that the Minister acted ultra vires in granting the State Lease to the fifth defendant. The Minister for Lands acted ultra vires in granting the State Lease to the fifth defendant.


50. The plaintiff submitted that the process under Section 130 of the Land Act to subdivide and grant the State Lease to the fifth defendant was not complied with. As discussed earlier in my judgment, there is no evidence by the State to prove that the process under Section 130 of the Land Act was complied with. The Minister acted ultra vires his powers when he granted the State Lease to the fifth defendant on the basis of the purported subdivision. The Minister did not provide a written notification approving the subdivision of the land under Portion 160C as required by Section 130(4) of the Land Act. The Minister did not have the surrendered lease before he granted the new lease.


51. Judicial review is concerned with the process and not the decision as per Kapi DCJ (as he then was) at page 124 in Kekedo v. Burns Philip Pty Ltd [1988-89] PNGLR 122.


52. I am satisfied that the Minister had acted ultra vires by granting the State Lease to the fifth defendant. The plaintiff has proven their second ground of review.


53. The third ground of review is that the Registrar acted ultra vires. The decision by the Registrar to register the subdivision was made ultra vires and in breach of Section 33(1) of the Land Registration Act because there was already an existing prior interest in the land.


54. A registered proprietor holds a title free of any encumbrances except for those exceptions under Section 33(1) of the Land Registration Act.


55. When applying the law to the facts of the present case, it is clear that the Registrar committed an error of law when registering the fifth defendant’s interest on the State Lease. There is clear evidence that, the plaintiff had prior interest over the land Portion 160C which was still valid at the time. The plaintiff’s interest in the State Lease was not surrendered nor was it forfeited nor was it set aside by a Court of Law.
56. By registering the fifth defendant’s State Lease for Portion 163C, the Registrar committed a serious error of law and breached Section 33 of the Land Registration Act. The plaintiffs were not guaranteed the statutory protection under Section 33 of the Land Registration Act. I uphold this ground of review.


57. The plaintiff’s alternative ground of review is that the restoration of the State Lease was ultra vires because the Registrar does not have the power to restore a cancelled State Lease.


58. The plaintiff argued that the Registrar did not have the power to restore the cancelled title to Portion 163C. The plaintiff concedes that the cancellation of the State Lease may not have followed the process under Sections 160 and 161 of the Land Registration Act. However, they still maintained the argument that the Registrar did not have the power to restore the title.


59. Section 160 of the Land Registration Act provides the mandatory process for the Registrar of Titles to exercise his or her powers to summon a person with an erroneous instrument or person who is fraudulently or wrongly in possession of an instrument to deliver up or produce the instrument. Section 161 of the Land Registration Act provides for the statutory process of how the Registrar exercises the discretion to cancel or correct an instrument which is delivered up pursuant to Section 160 of the Land Registration Act.


60. In hindsight, this process was not followed. That is not disputed by the plaintiff. I do however accept Mr Harry of counsel for the second plaintiff’s submission that there is no power given to the Registrar to restore the cancelled title.


61. In my view, once the title is cancelled the only avenue for an aggrieved person to seek redress is to apply for judicial review of the decision. The Court is the only place where the aggrieved person can overturn or set aside this particular decision. In the present case, the other interesting fact is the length of time between the cancellation of the State Lease and the administrative restoration. The State Lease was cancelled in May 2011 a few months after it was granted in January 2011. However, the restoration of the title happened almost 5 years later. This is clearly suspicious and wrong. I accept the submissions by Mr Books in this regard.


62. There is no evidence of an application filed to challenge the cancellation of the title. The space of time between the cancellation and restoration is too long, a time to rectify the purported mistake. Therefore, I find that the Registrar did commit an error of law and did act ultra vires when he administratively restored the cancelled title. The Registrar did breach the law as contended by the plaintiff. I uphold the plaintiff’s ground of review.


63. The common law principles of unreasonableness emanate from the classic case of Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 233. The Wednesbury principles of unreasonableness as they are commonly referred to, has been adopted and applied in numerous cases in this jurisdiction. A succinct summary of the principles was pronounced by the Supreme Court in the case of Ombudsman Commission v. Peter Yama (2004) SC 747. They are as follows;

(1) It must be a real exercise of discretion;
(2) The body must have regard to matters which it is expressly or by implication referred by the statute conferring the discretion;
(3) It must ignore irrelevant considerations;
(4) It must not operate on the basis of bad faith or dishonesty;
(5) It must direct itself properly in law; and
(6) It must act as any reasonable person would act and must not be so absurd in its action that no reasonable person would act in that way.

64. It is the sixth principle which is often referred to as the one that succinctly summarizes the Wednesbury principles.
65. The plaintiff contends that the decision were unreasonable. In the evidence before me, the decisions were unreasonable. The Minister’s decision to grant a State Lease was based on the purported application of a person other than the lessee of the State Lease. That decision is clearly absurd and unreasonable within the Wednesbury sense. The Registrar’s decision to register the fifth defendant’s interest in Portion 163C have it cancelled and then restore it administratively is also absurd and irrational within the Wednesbury sense. Therefore, I am satisfied that the decisions were unreasonable. The plaintiff has established this ground of review.


66. The plaintiff also submitted that the various decision failed to comply with the rules of natural justice. The decisions include the decision by the Surveyor General in January 2011 to register the subdivision survey of Portion 163C. The decision of the Minister to grant the State Lease to Ossima Resources Limited for Portion 163C in 2011. The decision of the Registrar of Titles to register the State Lease for Portion 163C on 28th January 2011 to Ossima Resources Limited and the registration of the title as Volume 18 Folio 205. And the decision of the Acting Registrar of Titles made on or about 26th February 2016 to “restore” the State Lease for Portion 163C to Ossima Resources Limited.


67. The first and second plaintiff’s submit that they were not served with any notices of the defendant’s intention to make those respective decisions. They were also denied the opportunity to be heard prior to the decisions being made or at least to respond to the decisions. It was also submitted that the decision makers took into consideration extraneous and irrelevant considerations such as the fact that the Minister for Forests had purportedly approved and applied for subdivision survey of Portion 160C when he was not even authorized and did not have the power to request for the subdivision. The application for subdivision was lodged by the fifth defendant who was not the lessee of the State Lease nor were they authorized to apply for a subdivision of Portion 160C.


68. It is evident in the evidence before me that the plaintiffs were denied natural justice in the manner as contended. I am satisfied that the plaintiff has proven this ground of review.


69. In the last ground of review the plaintiff challenges the decisions on the basis that the decisions were tainted with bias. There was an apprehension of bias when the decisions were made because of the fact that Mr Luther Sipison is Mr Charles Ossi’s brother in-law. Mr Ossi is the majority shareholder of the fifth defendant. At those material times, Mr Luther Sipison was the Surveyor General and later was the acting Secretary for Lands and Physical Planning.


70. Mr Brooks referred the Court to the Affidavit of Ignatius Bawi, he stated that he was the Chief of Imou Clan and the first cousin of Mr Charles Ossi. Mr Bawi stated that Mr Ossi’s wife was from Buka and they had lived with him at Koki occasionally. He understands that Mr Ossi’s wife is Mr Sipison’s brother (see page 686 Vol 3 of the Review Book). His evidence is that Mr Ossi had pursued this the application for the subdivision of Portion 160C on his own without the consent or support of the other landowners.


71. In the evidence of Mr Ossi and Mr Sipison, I note that they do not state that they know each other or that they are related by marriage. Then again they do not dispute Mr Bawi’s evidence. There is evidence before me that infers that Mr Sipison and Mr Ossi are known to each other and this has aided Mr Ossi in his quest to obtain a State Lease for Portion 163C. The decision to register the subdivision survey of Portion 160C was done by Mr Sipison when he was the Surveyor General (see page 514 Volume 2 of the Review Book). At the time Mr Sipison deposed to that affidavit he was appointed the acting Secretary for the Lands Department. The fifth defendant’s State Lease was cancelled on 12th May 2011 (see the Affidavit of Yanjol Apin page 507 Volume 2 of the Review Book). Then five years later on 24th February 2016 the title was restored. Was this pure coincidence that the title was restored when Mr Sipison was appointed the acting Secretary? I do not accept that this was a pure coincidence. The evidence before me indicates that Mr Sipison and Mr Ossi orchestrated the restoration of the title.
72. I am satisfied that there is evidence of actual bias. A fair minded observer having knowledge of the relevant facts would conclude that the decisions where tainted with bias. The plaintiff has established this ground of review.


73. After proving all the grounds of review, the next issue for determination by the Court is whether plaintiff should be granted the relief sought. I am of the view that the breaches of the Land Act are so flagrant and blatant that the decisions should be quashed notwithstanding that the decisions were made in 2011. The fact that those decisions are still around will mean that they may be implemented at whim. As stated earlier the decisions were made either on the mistaken belief that letter from Hon. Belden Namah was the valid authority to approve and authorize the subdivision of land in a State Lease. These decisions and actions by the Land’s officials are clearly wrong from the beginning and they should not be allowed to stand. All the relevant decisions will be brought into this Court and quashed forthwith. I will also order that the fifth defendant is to deliver up their copy of the State Lease so that it can be cancelled.


74. For the foregoing reasons and in the exercise of my discretion, the plaintiff’s application for judicial review is granted.


75. In regard to costs, whilst I note the State conceded at the hearing of this application, I am of the view that if the State’s lawyers had sought proper instructions and considered all the legal issues earlier, then appropriate consent orders should have been entered into earlier instead of going to trial. I am of the view that costs follow the event and the State made those decisions and therefore they should be responsible for some of the plaintiff’s costs. I will order that they pay 50% for both plaintiff’s costs of and incidental to the proceedings to be taxed if not agreed. For the fifth defendant, they choose to pursue a defence which was clearly baseless, without merit and flawed. I will order that they pay 50% of the first and second plaintiff’s costs of an incidental to the proceedings to be taxed if not agreed.


Court Orders


  1. Pursuant to Order 16 Rule 1(1) of the National Court Rules, the decision of the Surveyor General or his predecessor made on or about 29 December 2010 to register a subdivision survey of Portion 160C on allocated plan Cat .No. 1/136, the consequence of which created Portion 163C containing approximately 108, 479 hectares is removed into this Court and quashed forthwith.
  2. Pursuant to Order 16 Rule 1(1) of the National Court Rules, the decision of the Minister for Lands & Physical Planning (or his predecessor) and/or his delegate made on or about 28 January 2011 to grant a State Lease Volume 18 Folio 205 to Ossima Resources Limited for Portion 163C Milinch Bewani (NE & NW) & Oenake (NE & SE) Fourmil Aitape & Vanimo in the Sandaun Province containing an area of 31, 430 hectares is removed into this Court and quashed forthwith.
  3. Pursuant to Order 16 Rule 1(1) of the National Court Rules, the decision of the Registrar of Titles (or his predecessor) made on or about 28 January 2011 to register a State Lease to Ossima Resources Limited for Portion 163C Milinch Bewani (NE& NW) & Oenake (NE & SE) Fourmil Aitape & Vanimo in the Sandaun Province containing an area of 31,430 hectares entered in the Register as Volume 18 Folio 205 is removed into this Court and quashed forthwith.
  4. Pursuant to Order 16 Rule 1(1) of the National Court Rules the decision of the Acting Registrar of Titles made on or about 26 January 2016 to “restore” the State Lease Volume 18 Folio 205 to Ossima Resources Limited for Portion 163C Milinch Bewani (NE & NW) & Oenake (NE & SE) Fourmil Aitape & Vanimo in the Sandaun Province is removed into this Court and quashed forthwith.
  5. Pursuant to Order 16 Rule 1(1) of the National Court Rules the fifth defendant Ossima Resources Limited is compelled to deliver up its owners copy of the title for Portion 163C Milinch Bewani (NE & NW) & Oenake (NE & SE) Fourmil Aitape & Vanimo in the Sandaun Province containing an area of 31,430 hectares, entered in the Register as Volume 18 Folio 205 to the Registrar of Titles for cancellation in accordance with Sections 160 and 161 of the Land Registration Act within 14 days of this Order.
  6. The fourth defendant is to pay 50% of the first and second plaintiff’s costs of and incidental to the proceedings to be taxed if not agreed.
  7. The fifth defendant is to pay 50% of the first and second plaintiff’s costs of and incidental to the proceedings to be taxed if not agreed.
  8. Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

Orders accordingly,


Ashurst Lawyers: Lawyers for the First Plaintiff
Stevens Lawyers: Lawyers for the Second Plaintiff
Office of the Solicitor-General: Lawyers for First, Second, Third and Fourth Defendant
Baniyamai Lawyers: Lawyers for Fifth Defendant


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