Wapa v Bakus [2024] PGNC 354; N11031 (27 September 2024)

N11031

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 131 OF 2022

BETWEEN:
FARMA WAPA
Plaintiff

AND:
JACK BAKUS in his capacity as the Surveyor General
First Defendant

AND:
WILLIAM EDMOND MAXWELL SENIOR
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND
DELTA KIKORI LIMITED
Fourth Defendant

Waigani: Dowa J
2024: 23^rd May & 27^th September

JUDICIAL REVIEW –application for the nullification of various decisions for consolidation and subdivision of parcels of land for failing to comply with sections 130 and 131 of the Land Act-whether consolidation and subdivision possible without state leases-whether section 69 of the Land Act being complied with-whether decisions and identities of decision-making authorities properly identified - Plaintiff failed to establish the grounds for review – application dismissed with costs.

Cases Cited:
Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122
Vaki v Baki (2012) N4809
Pius Tikili v Home Base Real Estate (2017) SC1563
Mudge v Secretary for Lands [1985] PNGLR 387

Counsel:
A.Waira, for the Plaintiff
R. Mobiha, for the First and Third Defendants
V. Raga, for the Second and the Fourth Defendants

DECISION

27^th September 2024

1. DOWA J: This is a ruling on an application for judicial review of various administrative decisions by the first and third Defendants over land described as Allotment 4 Section 7, also described as Allotments 1,2 and 3, Section 7, Kikori, Gulf Province.
   

Facts

2. The Plaintiff, Farma Wapa, is the registered proprietor of land described as Allotment 1, Section 7, Kikori, Gulf Province. The second Defendant is the registered proprietor of land described as Allotment 4, formerly Allotments 1,2 and 3) Section 7, Kikori, Gulf Province.
   
3. From the facts presented by the parties the following is the current status quo of the subject properties:
   
   1. Allotment 1 Section 7 Kikori, Gulf Province with an area of 0.1587 hectares under Survey Plan Cat. No 37/93 for the State Lease Volume 93 Folio 128 for 99 years from 25^th February 2020 for Business (Commercial Business) purposes. The Lease is granted to Farma Wapa, the Plaintiff, and is registered in his name as of 12^th May 2020.
      
   2. Allotment 4 Section 7 Kikori, Gulf Province has an area of 0.4349 hectares under Survey Plan Cat No 37/119 for State Lease Volume 67 Folio 18 for 99 years from 20^th June 2014 for Business (Commercial Business) purposes. The Lease is granted to William Edmond Maxwell Senior, the second Defendant and is registered in his name as of 3^rd August 2015.
      
   3. The duplicity of the land description, survey plans and state leases over the same or part of the same land is the reason for this proceeding.
      
4. In the proceedings, the Plaintiff complains that the parcels of land under Allotments 1,2 and 3 Section 7 were wrongfully consolidated under an illegal Survey Plan Cat No 37/119. The Plaintiff alleges the title he has under Survey Plan Cat No 37/93 is legitimate and must be given due recognition.
   
5. In response, the second and fourth Defendants, submit that the second Defendant and his mother were the original applicants of Allotments 1,2, and 3, Section 7, which were subsequently consolidated into Allotment 4 in Survey Plan Cat. No.3/ 119. They allege the Survey Plan Cat. No 37/93 relied on by the Plaintiff is superseded by Survey Plan No 37/119 and submit that the Commercial Lease granted to the second Defendant is first in time and superior to the one the Plaintiff has.
   

Notice of Motion for substantive judicial review

6. By Notice of Motion, the Plaintiff seeks judicial review of the following decisions which are set out in full:
   
   1. The decision made by the third Defendant’s employee Dominic Avamor in establishing that section 07 allotments 01,02 and 03 Kikori Gulf Province was consolidated to section 07 allotment 4 Kikori Gulf Province and same was prepared to be sent to the Land Board to grant State Lease on the 5^th May 2008.
      
   2. The decision made by the first Defendant’s Predecessor on or about 20^th September 2007 in approving the subdivision under Survey Plan Cat. No 37/119.
      
   3. The decision made by the Third Defendant’ Registrar of Titles in registering the title over section 7 allotment 04 Kikori Gulf Province under the Second Defendant on the 3^rd August 2015.”
      

Hearing

7. The matter was heard on 23^rd May 2024 and decision reserved which I now deliver.
   

Evidence

8. The Plaintiff relies on the following Affidavits:
   
   1. Affidavit in Support of Farma Wapa filed 27^th December 2022.
   2. Affidavit of Farma Wapa filed 22^nd February 2023
   3. Further Affidavit of Farma Wapa filed 4^th July 2023
   4. Affidavit of Frank David Farma Wapa filed 21^st September 223
   5. Affidavit in Support of Farma Wapa filed 23^rd October 2023
   6. Affidavit of Farma Wapa filed 24^th November 2023
      
9. This is the summary of the Plaintiff’s evidence. The Plaintiff, originally from Pangia District, Southern Highlands Province is a resident of Kikori town, Gulf Province. He is the current registered proprietor of property described as Allotment 1 Section 7 Kikori, Gulf Province under State Lease Volume 93, Folio 128. He deposes that he applied for the lease in February 2019. At the time of application, the property Allotment1 Section 7 was vacant. He was assisted by Cain Paul, the Acting Provincial Lands Advisor from Gulf Provincial Administration. The PNG Land Board in its meeting No 3 of 2019 held from 25^th -29^th November 2019 recommended for the grant of the State Lease which was gazetted in the National Gazette on 25^th February 2020. The State Lease was eventually granted by the Minister for Lands and registered on 20^th May 2020.
   
10. The Plaintiff deposes that he has constructed a L40 type residence on the property and is currently occupying the property.
    
11. In late November 2021, he learnt through proceedings instituted against him in OS No 72 of 2021 -Bevan Romily Trading Limited v Farma Wapa that there is in existence another State Lease over the same property. He learnt that a Commercial Lease was granted to the second Defendant over the property this time described as Allotment 4 Section 7 Kikori, Gulf Province.
    
12. The new description of Allotment 4 Section 7 is a consolidation of Allotments 1,2 and 3 of Section 7 from a Survey Plan Cat No 37/119 dated 20^th September 2007. The original description is from the Survey Plan Cat No. 37/93 dated October 1988.
    
13. The Plaintiff deposes his enquiries with the Lands Department reveal that Survey Plan No. 37/119 is not a genuine Plan replacing Survey Plan No.37/93. It was only a recommendation which is yet to be approved and registered. The result is the second Defendant was granted a state lease on a faulty document. The Plaintiff also says that a consolidation of the parcels of land can only be done by holders of existing state leases under Section 131 of the Land Act. As such, the second Defendant, a mere applicant is not entitled to request for and be entitled to any consolidation of the existing allotments.
    
14. The Plaintiff deposes that the decision by Dominic Avamore, an employee of the Lands Department dated 5^th May 2008 stating that the land described as Allotment 4 (formerly Allotments 1,2 and 3) Section 7 Kikori have been consolidated into one allotment (Allotment 4) cancelling Allotments 1,2 and 3 is unlawful and improper.
    
15. The Plaintiff also deposes that the decision made by the Surveyor General on 20^th September 2007 in approving the subdivision under the Survey Plan Cat No. 37/119 is improper and unlawful.
    
16. And finally, the Plaintiff deposes that the decision made by the Registrar of Titles in registering the title over Allotment 4 Section 7 Kikori, Gulf Province in the name of the second Defendant is in breach of Section 131 of the Land Act and is unlawful.
    

The Second and fourth Defendants’ Evidence

17. The second and fourth Defendants rely on the following Affidavits:
    
    1. Affidavit of Robert Maxwell Senior filed 6^th June 2023
    2. Affidavit of Poweji Madu filed 6^th June 2023
    3. William Edmond Maxwell Senior filed 6^th June 2023
    4. Affidavit of Vera Raga filed 20^th November 2023
    5. Affidavit of Edmond Maxwell Senior filed 20^th November 2023
       
18. This is the summary of the second and fourth Defendants evidence. The title to the property, Allotment 4 (formerly allotments 1,2 and 3) Section 7, Kikori, Gulf province was granted to the second Defendant on 20^th June 2014. The title is under the Survey Plan Cat. No. 37/119. The Defendants submit that the title issued to the Plaintiff over Allotment 1 Section 7, being part of the second Defendant’s property, Allotment 4, was wrongfully issued.
    
19. In response to the allegations by Plaintiff, the Defendants say the allocation of the land and title was done according to law and was not manipulated or circumvented in any way. The second Defendant deposes he and his mother, Elizabeth Janice Senior, applied for the land in February 2002. Prior to the grant of the lease they were granted Licence to occupy. They have since developed part of the property and have been in occupancy since. After the grant of the State Lease, the second Defendant agreed under a contract of sale to transfer the title to the fourth Defendant which transfer is yet to be registered.
    
20. The Second Defendant deposes that the initial application was lodged for Allotments 1-3 Section 7. They followed due process, and their application was acknowledged and supported by Lae Makeu, the Provincial Lands Advisor. It was further supported by an additional Site Inspection Report undertaken by Cain Paul, the District Lands Officer. The subsequent consolidation of the allotments under the new Survey Plan was done by the Surveyor General’s Office and the Lands Department and they have nothing to do with that.
    
21. The second Defendant deposes despite the initial support and promises being made for the grant of the state lease to them, the PNG Land Board Meeting No.3/2011 awarded the land to Kiande Investments Limited. Although the initial application for the land by the second Defendant and his mother was for Allotments 1,2 and 3, the land was awarded to Kiande Investment Limited as Allotment 4 Section 7. The Defendants appealed the PNG Land Board decision to the Minister for Lands and Physical Planning on 9^th December 2011. On 20^th June 2014, the Minister for Lands and Physical Planning upheld the appeal and granted a State Lease for commercial purpose to the second Defendant. The Lease was signed on 18^th May 2015 and registered with the Register of Titles on 3^rd August 2015.
    
22. The Second Defendant submits that since he was granted the title of the land first in time, he has better title than that of the Plaintiff.
    

The First and third Defendant

23. The first and third Defendants offered no evidence.
    

The Grounds of Review

24. The grounds for review pleaded in the Statement filed pursuant to Order 16 Rule 3 (2) of the National Court Rules are:
    

a. Errors of law.

1. The third Defendant’s employee, Dominic Avamor, decided on 5^th May 2008 to consolidate Allotments 1,2 and 3 Section 7 Kikori, into Allotment 4, in breach of section 131 of the Land Act.
   
2. The first Defendant’s Predecessor breached Section 69 of the Land Act by failing to advertise for public tender the property Allotment 4 (formerly Allotments 1,2 and 3) Section 7 to give equal opportunity for bidders like the Plaintiff.
   
3. The first Defendant’s Predecessor and the third Defendant breached Section 130 of the Land Act by approving the Survey Plan Cat. No 37/119.
   
4. The Register of Titles made an error in registering a consolidated lease contrary to section 131 of the Land Act.
   

2. Unreasonableness.
   

It is alleged all decisions and errors of law by various decision makers pleaded in grounds 1-4 above are unreasonable.

Issues-Preliminary

25. At the time of hearing, the second Defendant raised preliminary issues on standing, delay, failure to raise arguable case and the filing of scandalous Affidavits. While the preliminary issues raised by the second Defendant are valid, I do not intend to deal with them separately. Leave has been granted for the substantive review and the arguments raised by counsel for the second Defendant can be considered and subsumed in the main decision of the substantive review.
    

Main Issues

26. The main issues raised for consideration from the grounds of review are:
    
    1. Whether the third Defendant’s employee, Dominic Avamor, made a decision on 5^th May 2008 to consolidate Allotments 1,2 and 3 Section 7 Kikori into Allotment 4 Section 7 contrary to Section 131 of the Land Act.
       
    2. Whether the first Defendant’s Predecessor and the third Defendant breached Section 130 of the Land Act in approving subdivision under the Survey Plan Cat. No 37/119.
       
    3. Whether the Third Defendant’ Registrar of Titles made a decision on 3^rd August 2015 in registering a consolidated State Lease over Allotment 4 Section 7 Kikori Gulf Province under the Second Defendant’s name contrary to Section 131 of the Land Act.
       
    4. Whether the first Defendant’s Predecessor breached Section 69 of the Land Act by failing to advertise for public tender the property Allotment 4 (formerly Allotments 1,2 and 3) Section 7 to give equal opportunity for bidders like the Plaintiff.
       

Law on Judicial Review

27. The relevant law for judicial review is Order 16 of National Court Rules. Order 16 Rule 1 of the National Court Rules caters for cases appropriate for application for judicial review and provides in this manner:
    
    • (1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.
      
    • (2) An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the court may grant the declaration or injunction claimed if it considers that, having regard to:
      
      • (a) the nature of the matters in respect to which relief may be granted by way of an order of mandamus, prohibition or certiorari; and
        
      • (b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and
        
      • (c) all the circumstances of the case,
        

it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.”

28. In Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122, the Supreme Court stated that:

“The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers”.

29. The Supreme Court in that case further stated that:

“The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process.

30. In the case Vaki v Baki (2012) N4809, His Honour Kirriwom J said:

“The circumstances under which Judicial Review is available are where the decision- making authority:

(a) Lacks power to make the decision;

(b) Exceeds or abuses its power;

(c) Commits an error of law;

(d) Breaches the principles of natural justice;

(e) Arrives at a decision which no reasonable tribunal would have reached;

(f) Takes into account irrelevant considerations in its decision-making process;

(g) Failed to take into account relevant considerations in its decision-making process."

Consideration of the issues

1. Decision for Consolidation by Dominic Avamor dated 5^th May 2008.
   

Whether the third Defendant’s employee, Dominic Avamor, made a decision on 5^th May 2008 to consolidate Allotments 1,2 and 3 Section 7 Kikori into Allotment 4 Section 7 contrary to Section 131 of the Land Act.

31. Mr. Waira, counsel for the Plaintiff, submits that one Dominic Avamor, an employee of the State made a decision on 5^th May 2008 to consolidate Allotments 1,2 and 3 Section 7, Kikori, Gulf Province under Survey Plan Cat No. 37/93 into Allotment 4 Section 7, under Survey Plan Cat No. 37/119 contrary to Section 131 of the Land Act. The Plaintiff argues that the second Defendant who benefited from the consolidation was not a State Lease holder of the existing Allotments 1-3, to qualify for an application for consolidation. That the Defendants failed to advertise the property under Section 69 of the Land Act after the consolidation for the public to tender for the property.

32. In response, Mr. Raga, counsel for the second and fourth Defendants, submits the following:

a. The Plaintiff lacks standing to challenge a decision for the consolidation that took place many years back.

b. There is undue delay of more than 14 years

c. There is no evidence of the actual decision

d. The Plaintiff failed to name the relevant parties in the proceedings.
33. Ms. Mobihia, counsel for the first and third Defendants, supports the submissions of the counsel for the second and fourth Defendants.

Consideration

34. The Plaintiff has the burden to establish on the balance of probabilities that an administrative decision was made contrary to law affecting his proprietary interests.
    
35. The evidence shows, the Plaintiff is the registered owner of Allotment 1 Section 7, Kikori, Gulf Province in the old Survey Plan Cat No 37/93. He was granted the State Lease on 12^th May 2020. Sometime later in 2021, the Plaintiff learnt of the second Defendant’s title over the same property under a new Survey Plan Cat. No 37/119 whereby the Plaintiff’s property was subsumed in the new consolidated Survey Plan. The Plaintiff alleges that the decision to consolidate Allotments 1,2 and 3 Section 7 Kikori, was made by one Dominic Avamor, Land Allocation Officer, Department of Lands and Physical Planning on 5^th May 2008. The decision was for the consolidation of Allotments 1,2 and 3 to Allotment 4, Section 7 Kikori, Gulf Province under the new Survey Plan No 37/119. Thereafter, the consolidated property, Allotment 4, was then awarded to the second Defendant on 20^th June 2014 and got it registered on 3^rd August 2015.
    
36. The decision of 5^th May 2008 by Dominic Avamor relied on by the Plaintiff is in a form of a letter addressed to Kiande Investment Ltd. The text of the subject decision referred to by the Plaintiff is reproduced in full below for context and easy reference:
    

Date: 05^th May, 2008

Ref: BE/007/004

Kiande Investment Ltd

P.O Box 389

GORDONS

National Capital District

RE: SECTION 7 ALLOTMENT 4, TOWN OF KIKORI, GULF PROVINCE

You are advised that the above parcel of land (formally 1, 2 & 3 Section 7) had been consolidated into one allotment cancelling Allotments 1, 2 & 3 respectively.

The same is prepared for the next available Land Board for formal grant of state lease. You will be advised as to when and where the Land Board meeting will be conducted.

Your understanding is much appreciated.

Yours faithfully,

(signed)

DOMINIC AVAMOR

Land Allocation Coordinator – Southern”

37. The text of the above letter is clear. It is a letter of advice to Kiande Investment Ltd, an applicant for a state lease over the property, Allotment 4 Section 7, Kikori. In the letter, Mr Avamor informs the applicant of a decision made for the consolidation of the parcels of land previously under Allotments 1,2 and 3 Section 7 and that of an impending Land Board hearing for the grant of the state lease. In my considered view, it is not a decision per se made under Section 131 of the Act for the consolidation of the parcels of land under a state lease. The relevant Survey Plan Cat. No 37/119 shows the consolidation plan was approved around 20^th September 2007. It seems the decision to consolidate the subject portions of land was done before 5^th May 2008. No evidence is brought to establish the identity of the person or persons who made that decision except for the approval of the Plan by the Survey General. Presumably the Department of Lands and Physical Planning are responsible. Although Dominic Avamor is referred to as an employee of the Lands Department, he was not named a party in the proceedings. This is necessary because it is his decision the Plaintiff is seeking review, and he must be made a party to respond.
    
38. The Court notes the Plaintiff’s contention that the decision made to consolidate Allotments 1,2 and 3 to Allotment 4 was made in breach of Section 131 of the Land Act. Section 131 reads:
    
    131. CONSOLIDATION OF LEASES.

(1) Where a person is the lessee of adjoining land under two or more State leases, he may apply to the Minister for the grant to him of a new lease of all the land included in the leases.

(2) An application under Subsection (1) shall–

(a) be written; and

(b) be accompanied by a plan showing the land that it is desired to have included in the new lease; and

(c) where any part of the land is within a physical planning area, be accompanied by planning permission for the consolidation under the Physical Planning Act 1989.

(3) The Minister may–

(a) approve an application under Subsection (1); or

(b) refuse the application but, where the application is accompanied by planning permission for the consolidation under the Physical Planning Act 1989, shall not refuse the application for any physical planning reason.

(4) The Minister shall notify the lessee of his decision in writing, and if he has approved the application he shall specify in the notification–

(a) the reservations, covenants, conditions and provisions that he thinks are necessary to be included in the new lease; and

(b) the fees and deposit payable in respect of the grant of the new lease.

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

(a) shall be made within 30 days or within such further time as the Minister allows, after the date of the notification of the approval of the application; and

(b) has effect from the date of commencement of the new lease.

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

(a) be of the same kind as any one of the surrendered leases, unless the Minister in any particular case directs otherwise; and

(b) preserve the lessee’s rights (if any) in respect of improvements on any land included in the new lease; and

(c) be for a period that will expire not before the earliest date, and not after the latest date, on which any of the surrendered leases would have expired; and

(d) contain, in addition to the matters provided for elsewhere in this Act, the reservations, covenants, conditions and provisions specified in the notification given under Subsection (4).

39. Section 131 is clear. The authority to approve consolidation of state leases rests with the Minister for Lands. A decision on consolidation of state leases is made (by the Minister) on application by a person who is the lessee of adjoining land under two or more State leases. The Minister’s decision shall be in writing. It involves the surrender of multiple state leases for a single lease, so to speak.
    
40. In the present case, contrary to the Plaintiff’s allegation, there was no consolidation of state leases, nor was there any application made for such consolidation by the second Defendant as envisaged by Section 131 of the Land Act. There is no evidence, and no reference is made to any decision for consolidation by the Minister for Lands and Physical Planning as prescribed by Section 131 (1) of the Act. The evidence shows no state leases were issued over the subject land until 20^th June 2014. The evidence shows the consolidation of Allotments 1,2 and 3 to a single Allotment 4 was done seven (7) years earlier under a new land description in or around September 2007, when the second Survey Plan Cat No. 37/119 was registered, apparently superseding the first. The consolidation of the three parcels of land into one under a new land description is not a consolidation of state leases for the purposes of Section 131 of the Act.
    
41. The Plaintiff contends that the decision for consolidation of the subject parcels of land was made in May 2008. At the relevant time of the purported decision (May 2008), the Plaintiff had no interest or rights in the subject land. The Plaintiff acquired his interest in the subject land when he was granted a state lease in May 2020, about 12 years later. The Plaintiff had no interest in the subject land then and would have no standing to challenge an administrative decision made at the relevant time regardless of its wrongfulness. The decision did not affect him then and should not be resurrected to enliven his interest now.
    
42. An application for judicial review under Order 16 of the National Court Rules involves the grant of an order in mandamus, prohibition, certiorari or quo warranto. It involves the review of administrative decisions by decision-making authorities. It is available “where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers”. (Kekedo v Burns Philip (PNG) Ltd) (supra).
    
43. For the Court to grant the review application and any declaratory, injunctive and other consequential orders, the duty is on the applicant to state precisely the nature of the decision, the date of decision, the name of the decision-making authority and the wrongs made, and the interests affected.
    
44. I am not satisfied that the Plaintiff has established a case for review. As alluded earlier, Mr Avamor’s letter to Kiande Investment Ltd is not a decision for the purposes of Section 131 of the Act. It is misconceived. Consolidation of parcels of land with one set of land description to a new description is not the same as consolidation of state leases under section 131 of the Land Act. The Plaintiff failed to establish to the satisfaction of the Court the nature of the decision, the date of the decision, the identity of the decision-making authority, the wrongs made, and interests affected or suffered.
    
45. For the foregoing reasons, I find the application for the review of the purported decision of Dominic Avamor of 5^th May 2008 a fallacy insofar as it is intended to be a decision to approve consolidation of state leases under Section 131 of the Land Act. I will therefore dismiss the application for review of the said decision.
    
    2. Decision for Approval of Subdivision under Survey Plan Cat No 37/119 dated 20^th September 2007.
       

Whether the first Defendant’s Predecessor breached Section 130 of the Land Act in approving subdivision under the Survey Plan Cat. No 37/119.

46. This issue relates to the second decision the Plaintiff seeks to review in this proceeding. The Plaintiff submits that the person previously occupying the office of Surveyor General and the State breached Section 130 of the Land Act in approving subdivision under Survey Plan Cat No 37/119 on 20^th September 2007.
    
47. Section 130 (1), (2) and (3) of the Land Act is relevant, and it reads:
    
    130. APPROVAL OF SUBDIVISION.

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

(2) An application under Subsection (1) shall–

(a) be written; and

(b) be accompanied by a plan showing the manner in which it is proposed to subdivide the land; and

(3) The Minister may–

(a) approve an application under Subsection (1); ....

(4) The Minister shall notify the lessee of his decision in writing and, if he has approved the application, he shall specify in the notification–

(a) any reservations, covenants, conditions and provisions that he thinks are necessary to be included in each lease of the land if it is subdivided; and

(b) the fees and deposits to be paid by the lessee in respect of the grant of new leases for the subdivided portions of the land.

(5) If the lessee–

(a) has paid all rent due under the lease; and

(b) accepts the reservations, covenants, conditions and provisions specified in the notification; and

(c) has paid the fees and deposits in respect of the grant of the new leases,

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.

......”

48. Section 130 is clear. The Minister for Lands has the authority to approve subdivision of state leases. A decision on subdivision of state lease is made (by the Minister) on application by a person who is the lessee of a land under state lease into two or more parcels of land for the grant of multiple State leases. It involves the surrender of a single state lease for the grant of two or more leases with different or separate land descriptions.
    
49. In my view, the Plaintiff’s application is misconceived and not supported by evidence. There is no evidence of a decision made for subdivision as envisaged by Section 130 of the Land Act. The Survey Plan Cat No. 37/119 was done to accommodate the consolidation of Allotments 1,2 and 3 Section 7 Kikori under the previous Survey Plan Cat. No. 37/93 to Allotment 4 in the new Survey Plan, 37/119. That is, the Survey Plan Cat No 37/119 was not done for any subdivision under section 130 of the Land Act. Rather it is to consolidate parcels of land under the description of Allotments 1,2 and 3 to Allotment 4 Section 7. The Plaintiff’s application is clearly misconceived as there is no decision made for subdivision to be reviewed.
    
50. Having reached the above conclusion, I will for completeness proceed to consider if the Plaintiff’s application has any merit in challenging the decision of the Surveyor General in approving Survey Plan Cat. No 37/119.
    
51. It is not contested that the subject land has double allocation under two different land descriptions and state leases. The Plaintiff has a state lease over Allotment 1 Section 7, from Survey Plan Cat. No 37/93 while the second Defendant has a state lease over Allotment 4 (formerly allotments 1,2 &3) Section 7 under Survey Plan Cat No 37/119. Allotment 4 Section 7 is a consolidation of Allotments 1,2 and 3 of Section 7 from a Survey Plan Cat No 37/119 dated 20^th September 2007. The original description is from the Survey Plan Cat No. 37/93. Survey Plan 37/93 was approved and registered in October 1988 while the Survey Plan No 37/119 was approved on 20^th September 2007.
    
52. The Plaintiff contends that Survey Plan No. 37/119 is not a genuine Plan replacing Survey Plan No.37/93. It was only a recommendation which is yet to be approved and registered. The Plaintiff relies on recent reports and correspondence from the Department of Lands and Physical Planning which could not confirm that Plan No 37/119 superseded Plan 37/93. I studied the Survey Plan Cat No 37/119 carefully and find that it was certified by one Geno Oraevele, a Registered Surveyor with an endorsement that it superseded Survey Plan Cat No 37/93. Survey Plan 37/119 was approved by the Regional Surveyor and registered by the Surveyor General on 20^th September 2007.I note major decisions like the PNG Land Board recommendations and the grant of state lease were subsequently made based on the Survey Plan 37/119.
    
53. In the absence of any conclusive evidence to the contrary, I do not accept the Plaintiff’s argument that the Survey Plan No 37/119 was nothing more than just a recommendation. The Plaintiff has failed to demonstrate how the first Defendant’s unidentified predecessor failed in his duty, or exceeded its powers, commits an error of law, or a breach of natural justice. In the end, the Plaintiff has the burden of proof, and he has failed to discharge the burden to the satisfaction of the Court.
    
54. Apart from matters discussed, there is yet another reason why this application will not succeed. The decision approving Survey Plan 37/119 was made in September 2007. At the relevant time of the said decision, September 2007, the Plaintiff had no interest or rights in the subject land. The Plaintiff acquired his interest in the subject land when he was granted a state lease in May 2020, about 13 years later. The Plaintiff had no interest in the subject land then and would have no standing to challenge an administrative decision made at the relevant time regardless of its wrongfulness. The decision did not affect him then and should not be resurrected to enliven his interest now.
    
55. For the foregoing reasons, I will dismiss the application for the review of the first Defendant’s unidentified Predecessor’s decision in approving Cat Plan No 37/119.
    
    3. Third Decision for Review: Registration of Consolidated State Lease by Registrar of Titles dated 3^rd August 2015.
       

Whether the Third Defendant’s Registrar of Titles made a decision on 3^rd August 2015 in registering a consolidated State Lease over Allotment 4 Section 7 Kikori, Gulf Province under the Second Defendant’s name contrary to Section 131 of the Land Act.

56. The third decision for review relates to the registration of the second Defendant’s title by the Registrar of Titles. The Plaintiff contends that the third Defendant’s Registrar of Titles made a wrong decision on 3^rd August 2015 in registering the consolidated State Lease over Allotment 4 Section 7 Kikori, Gulf Province in the name of the second Defendant contrary to Section 131 of the Land Act.
    
57. I have carefully considered the pleadings, evidence and submissions of the parties and following are my findings on the issue raised.
    
58. The Plaintiff’s application is premised on the basis that since the second Defendant was not the holder of an existing State Lease over Allotments 1,2 and 3, he does not qualify and cannot be granted a consolidated State Lease under Section 131 of the Act. The Plaintiff therefore argues that the grant of state lease over a consolidated Allotment 4 (formerly Allotments 1,2 and 3) and registered by the Registrar of Titles is an error of law under Section 131 of the Land Act.
    
59. Section 131 of the Land Act provides an exhaustive procedure for consolidation of leases. Basically, where a person is the lessee of adjoining land under two or more State leases, he may apply to the Minister, in writing, to be accompanied by a plan showing the land that it is desired to have included in the new lease, for the grant to him of a new lease of all the land included in the leases.
    
60. In the present case, there is no dispute that the second Defendant was not the lessee of Allotments 1,2 and 3 of Section 7 prior to the consolidation. There is also clear evidence that the second Defendant did not apply for the consolidation. The contention that the second and fourth Defendants influenced or circumvented the consolidation of the Allotments 1,2 and 3 section 7 into allotment 4 culminating into Survey Plan No 37/119 is not supported by evidence. On the contrary, the evidence shows that the second Defendant’s mother, Elizabeth Senior was one of the earlier applicants for the grant of the state lease in 2002. Mrs Elizabeth applied for the three parcels of land in Allotments 1,2 and 3 Section 7 as described in the first Survey Plan No 37/93, about 15 years before the consolidation. The consolidation of parcels of land, Allotments 1,2 and 3 under the new Survey Plan 37/119, were done by the persons other than the second Defendant, especially officers from the Department of Lands and Physical Planning including the Survey General’s Office. The PNG Land Board in its meeting No. 3/2011 recommended the grant of the State Lease over the consolidated land Allotment 4 to one Kiande Investment Limited. The second Defendant was not the original choice for the state lease. The PNG Land Board decision was appealed by the second Defendant to the Minister for Lands and Physical Planning. On hearing and considering the historical background and documentary evidence, the Minister upheld the appeal and granted the State Lease to the second Defendant. While the Plaintiff takes issue with the Minister’s decision in granting the state lease to the second defendant who was not the original applicant, that is a matter of discretion by the Minister. The Plaintiff has not challenged the Minister’s decision, nor has he (the Minister) been named a party to the proceedings.
    
61. Furthermore, prior to the Minister’s decision for the grant of the state lease in the consolidated Allotment 4, the parcels of land, Allotments 1,2 and 3 under the Survey Plan Cat. No 37/93 were not under any existing state leases. The replacement of Survey Plan No 37/93 resulting in the consolidation of the three allotments into Allotment 4 under Survey Plan 37/119 is a matter for the Department of Lands and Physical Planning and the office of Survey General. The Department of Lands and Physical Planning has not been named a party in the proceedings to respond to the allegations.
    
62. It is clear, the Minister for Lands and Physical Planning did not make a decision, nor was he involved in the consolidation of the parcels of land for the purposes of Section 131 of the Act. Rather, the Minister made an original decision on appeal from the PNG Land Board recommendation. The Minister has the statutory power under Sections 65 and 92 of the Land Act to grant the Business Lease to the second Defendant.
    
63. After the grant of the State Lease, the Registrar of Titles proceeded to register the grant of the Title on 3^rd August 2015. The Registrar of Titles was performing an administrative function under Part III & IV of the Land Registration Act 1981. He was not involved in the consolidation of the portions of Land nor the grant of the State Lease to the second Defendant. The administrative act of registering the State Lease (Title) over the consolidated Allotment 4 in the name of the second Defendant on 3^rd August 2015 by the Registrar of Titles is not a decision made for the purposes of Section 131 of the Land Act.
    
64. I find no evidence of any wrongdoing like abuse of power or errors of law, either substantive or procedural, committed by the Registrar of Titles when he registered the grant of the State Lease over Allotment 4 (formerly allotments 1,2 &3) Section 7, Kikori, in the name of the second Defendant.
    
65. Apart from the above findings, I also find the Plaintiff would have no standing to challenge the registration of the state lease or title in the name of the second Defendant. The Plaintiff had no competing proprietary interest over the subject property in August 2015. He was not an applicant for the state lease at the material time. He acquired his interest in the property after he was granted the lease in May 2020.
    
66. For the foregoing reasons, the application for the quashing of the Registrar of Titles’ decision or administrative act of registering the second Defendant’s title is refused.
    
    4. Whether the first Defendant’s Predecessor breached Section 69 of the Land Act by failing to advertise for public tender the property Allotment 4 (formerly Allotments 1,2 and 3) Section 7 to give equal opportunity for bidders like the Plaintiff.
       
67. The Plaintiff alleges that the first Defendant’s Predecessor breached section 69 of the Land Act by failing to advertise for public tender the property Allotment 4 Section 7. In my view the allegation is too general. The pleadings do not clearly identify the decision-making authority. Secondly, the incident happened many years back, and is not clear whether the Plaintiff had an interest in the land back then in the years 2007 and 2008. Also, there is undue delay in raising this issue.
    
68. Apart from that, the evidence shows that the second Defendant’s mother applied for the state lease in 2002.The law allows for applications without public tender under Section 69 (2) of the Land Act where advertisement is exempted. There is little evidence to establish whether it was exempted except for the support given by the Lands Officers who did the site inspections with the recommendations that the second Defendant’s family be granted the state lease. In any case, it is of little consequence as other evidence shows the property was subsequently advertised for public tender in the National Gazette on 11^th September 2008. The PNG Land Board considered the applications in its Meeting No 3/2011. The PNG Land Board decision was made in favour of Kiande Investment Ltd as against the second Defendant and his mother. The second Defendant was subsequently granted the lease on appeal to the Minister as allowed by law. Clearly, Sections 68 & 69 of the Land Act was complied with. I find no evidence of non-compliance, fraud, either actual or constructive fraud against the Defendants.
    

Conclusion

69. This is the conclusion of the findings of the Court. I am not satisfied that the Plaintiff’s application for the judicial review of the three distinct administrative decisions pleaded in the Originating Summons, the Statement of Facts and the substantive Notice of Motion for judicial review are proved. The applications for judicial review shall be dismissed.
    

Other Matters

70. There are other matters that was raised by the parties which I wish to address for completeness and clarity in the following paragraphs.
    

Whether the second Defendant influenced the consolidation of the parcels of land?

71. The Plaintiff made serious allegations against the second Defendant for influencing or circumventing the consolidation of the parcels of land Allotments 1,2 and 3 to allotment 4, Section 7. I find virtually no evidence to support the allegations. The consolidation of the parcels of land are administrative acts of personnel in the Department of Lands and Physical Planning and the Surveyor General and as such they are responsible. At this stage, there is no clear evidence of any impropriety or illegal act on the part of the officers of the Department of Lands and Physical Planning.
    

Whether Survey Cat Plan No 37/93 of 1988 is superseded by Cat Plan 37/119.

72. The Plaintiff alleges the Cat Plan 37/119 is only a recommendation and has not superseded the original Cat Plan No 37/93. Only the personnel from the Department of Lands and Physical Planning know the status of new Survey Plan 37/119. What is clear, though, from the text of the Cat Plan 37/119 is that Cat Plan 37/119 has superseded the original Survey Plan 37/93 unless shown otherwise. Moreover, I find no evidence of any influence by the second Defendant being exerted on the consolidation of the parcels of the subject land and the new Survey Plans.
    

Whether the second Defendant was entitled to be granted the state lease when he was not the original applicant?

73. The Plaintiff alleges that the second Defendant was not entitled to be granted the state lease as he was not the original applicant for the state lease. I accept the explanation given by the second Defendant that he and his mother were the original applicants for the entire property in 2002 although the application was made in the name of the mother only. There is overwhelming evidence showing the involvement of the second defendant family in their pursuit for the state lease in the subject land including support from the Lands Officers then. In the PNG Land Board Meeting No 3/2011, the grant of the state lease was recommended for Kiande Investment Ltd. The second Defendant along with his mother, Elizabeth Janice Senior, appealed the decision to the Minister for Lands in December 2011 and specifically requested for the grant of the lease. The Minister upheld the appeal and granted the Business Lease to the second Defendant to commence on 20^th June 2014. I find nothing untoward in the grant of the state lease to the second Defendant. It is the prerogative of the Minister and the Minister’s decision has not been challenged in these proceedings.
    

Was there any fraud in the grant of the state lease to the second Defendant?

74. I note the Plaintiff raised allegations of constructive fraud against the Defendants. Fraud is defined in the head notes of the judgment of Pius Tikili v Home Base Real Estate (2017) SC 1563 to mean “actual fraud or constructive fraud. Constructive fraud exists where the circumstances of a transfer of title are so unsatisfactory, irregular or unlawful, it is tantamount to fraud, warranting the setting aside of registration of title.”
    
75. The Plaintiff alleged in the proceedings that there were breaches or non-compliance of Sections 69, 130 and 131 of the Land Act.
    
76. The Plaintiff made allegations of unlawful consolidations and subdivisions contrary to Sections 130 and 131 of the Land Act amounting to constructive fraud. I have dealt with the allegations previously in the judgment and will not repeat except to reiterate that the allegations are misconceived. Names of persons who failed in their statutory duties were not given or made parties to the proceedings. There is insufficient evidence to establish the allegations. I have also dealt with the complaint raised in respect of section 69 of the Land Act and will not repeat same.

Whether the second Defendant’s Title prevails over the Plaintiff’s Title

77. The second Defendant argues that his title prevails over the Plaintiff’s title because it was granted first in time. Ordinarily, it is common sense and logic to hold that the title granted first in time would prevail over the Plaintiff’s later registered title. The law in Sections 32 & 33 of the Land Registration Act supports this notion.
    
78. Section 32 of the Land Registration Act provides that where an instrument of title describes a person as the proprietor of an estate or interest, that person is the registered proprietor of the estate or interest. Section 33 of the Land Registration Act provides that a registered proprietor of an estate or interest holds it absolutely free from all encumbrances except for fraud and other exceptions set out in subsection (1)(a) to (f). Refer Mudge v Secretary for Lands (1985) PNGLR 387.
    
79. Although the second Defendant’s title was registered first in time, it is not a clear case of indefeasibility of title for the purposes of Section 33 of the Land Registration Act. This is because of duplicity of Survey Plans, land descriptions, and state leases over the same or part of the same land. The Plaintiff has a title over Allotment 1 Section 7, being part of the Survey Plan Cat 37/93, while the second Defendant has a title over Allotment 4 (formerly Allotment 1,2 and 3) in the new Survey Plan Cat No 37/119.It is clear the Plaintiff’s property is subsumed in the second Defendant’s state lease.
    
80. Although I have made findings of fact, I am reluctant to determine the issue of ownership and make any declaration as requested by the second Defendant at this stage. This is because the second Defendant has not filed his own proceedings seeking those orders and it is likely to surprise the Plaintiff. The Plaintiff be given an opportunity to defend. The second Defendant is at liberty to file his own proceedings if he so desires.
    
81. Alternatively, the parties can resolve this dispute administratively via the Department of Lands and Physical Planning.
    

Costs

82. The Defendants ask for costs. It is a discretionary matter. Since the Defendants have successfully defended the proceedings, they are entitled to costs, which I shall order in their favour.
    

Orders

83. The Court orders that:

1.The Plaintiff’s application for judicial review on the three administrative decisions is dismissed.

2. The Plaintiff shall pay the Defendants’ costs of the proceedings to be taxed, if not agreed.

3. Time be abridged.

Waira Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the First and Third Defendants
Diwenis Lawyers: Lawyers for the Second and Fourth Defendants