N11333
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 11 OF 2022 (IECMS)

BETWEEN: 
JAYA & BERJAYA LIMITED
First Plaintiff

AND:
MADANG TIMBERS LIMITED
Second Plaintiff

AND:
HONOURABLE JOHN ROSSO, 
MINISTER FOR LANDS & PHYSICAL PLANNING
First Defendant

AND:
ALA ANE, ACTING REGISTRAR OF TITLES, 
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND:
BENJAMIN SAMSON, THE SECRETARY, 
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

AND:
BANDI CORPORATION LIMITED
Fifth Defendant

WAIGANI:  DINGAKE J
4 APRIL, 05 JUNE 2025

JUDICIAL REVIEW - Application for Stay – requirements - held

Cases cited
Mision Asiki v Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Administrator and the Independent State of Papua New Guinea (2005) SC797 Sisimolu v Naua (2024) SC2525

Counsel
Mr. Clayton Joseph for the plaintiffs
Mr. Camillus M. Gagma for the fifth defendant

RULING

1.	DINGAKE J: INTRODUCTION:  This is my ruling with respect to the Fifth Defendant’s Notice of Motion seeking to dismiss the Plaintiff’s Statement of Claim filed on the 4th of February 2025.

2.	The Fifth Defendant seeks to dismiss the Plaintiff’s Statement of Claim for reasons, that the said claim was initiated without first giving notice of the Plaintiff’s intention to claim against the State pursuant to Section 5 of the Claims By and Against the State Act; for being time barred pursuant to Section 16(1) and (2) of the Fraud & Limitation Act; for disclosing no reasonable cause of action, for being frivolous and vexatious and for abuse of the Court process.

3.	At the heart of the dispute between the parties is a piece of land, then described as Allotment 8, Section 135, Hohola, National Capital District. The said land was the subject of Urban Development Lease (“UDL”) registered in the name of the Second Plaintiff being the whole of the land contained in State Lease Volume 32 Folio 20 (MTL UDL) issued on the 3rd of April 2008, pursuant to Section 106 of the Land Act 1996.

4.	Although this proceeding started as a judicial review proceeding & leave having been granted on the 21st of February 2022, it was ordered by this Court (per Linge AJ) on the 7th of November 2022, to proceed as if commenced by Writ. 

5.	The Plaintiffs were ordered to plead the cause of action in the Statement of Claim.

6.	It is not necessary for the purposes of this ruling to traverse the journey of this matter via the Supreme Court, save to say that the unsuccessful Plaintiff’s appeal against the decision of Linge AJ, took two (2) years to conclude.

7.	The matter was placed before me on the 11th of March 2025. On that date, I dealt with the Fifth Defendant’s Notice of Motion filed on the 29th of November 2024, to summarily dismiss the proceedings for disclosing no reasonable cause of action. I dismissed the said Notice of Motion, with the result that the issue of failure to disclose a reasonable cause of action is now res judicata.

8.	I turn now to consider the other grounds upon which the Fifth Defendant seeks to dismiss this proceeding.

WHETHER SECTION 5 OF THE STATE ACT 1996 APPLIES TO THIS PROCEEDING

9.	The Fifth Defendant contends that despite the Plaintiff being obliged to issue a Section 5 Notice in these proceedings, the Plaintiffs have failed to depose evidence of the Section 5 Notice nor plead the said Notice in its Statement of Claim.

10.	In response, the Plaintiff argues that it is not obliged to issue a Section 5 Notice because it is seeking a declaration that they are the registered proprietors of the Land and seek an order in the nature of certiorari to quash the decision of the First Defendant (or his predecessor) dated the 15th of December 2021, to grant the Bandi UDL.

11.	The Plaintiffs argue that they would have been obliged to issue a Section 5 Notice if their claim was in contract or in tort against the State.

12.	It is true that the Plaintiff’s claim does not lie in contract or tort. They are seeking declarations and an order in the nature of certiorari to quash the decision of the First Defendant.

13.	It is also trite law that the requirement to give notice under Section 5 of the Claims By and Against the State Act 1996, does not apply to declarations and orders to quash the decision of a public body. (Mision Asiki v Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Administrator and the Independent State of Papua New Guinea (2005) SC797; Sisimolu v Naua (2024 SC2525).

14.	In the result, for reasons stated above, the argument that the Plaintiffs were obliged to issue a Section 5 Notice in these proceedings is without merit and it is dismissed.

15.	I turn now to the Fifth Defendant’s ground that the claim is time barred. This argument also lacks merit for the reason that the Plaintiffs are seeking equitable relief and their claims as I have already stated does not lie in contract or tort and consequently Section 16(1) of the Frauds & Limitations Act is not applicable. There is no proven basis that this claim is time barred.

16.	The Fifth Defendant has not established any ground that entitles it to the relief sought. The merits of the Plaintiff’s claim are still to be determined and must proceed to trial. That the Plaintiffs have a reasonable cause of action that is not frivolous, nor vexatious.

17.	On the issue of costs, such are the discretion of the Court. Generally, costs follow the event. In this case, I see no reason why costs should not follow the event.

18.	In the result, the Court Orders that:

a)	The Fifth Defendant’s Notice of Motion filed on the 18th of March 2025, be dismissed.

b)	The Fifth Defendant shall pay the Plaintiff’s costs, incidental to the Fifth Defendant’s Notice of Motion and such costs to be agreed or taxed.
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Lawyers for the plaintiffs: Ashurst PNG Lawyers
Lawyers for the fifth defendant: Gagma Legal Services