Papua New Guinea Forest Authority v Sukiri Investment Ltd [2025] PGNC 308; N11451 (5 June 2025)

N11451

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 74 OF 2020

BETWEEN:
PAPUA NEW GUINEA FOREST AUTHORITY
Plaintiff

AND:
SUKIRI INVESTMENT LIMITED
First Defendant

AND:
BENJAMIN SAMSON, Secretary, Department of Lands & Physical Planning
Second Defendant

AND:
SAM WANGE – CHAIRMAN, NATIONAL BOARD, Department of Lands and Physical Planning
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

WAIGANI: PURDON-SULLY J
12 FEBRUARY, 5 JUNE 2025

JUDICIAL REVIEW - Issues of competency - whether the Plaintiff has named the correct decision-maker and/or decisions to be reviewed – pleadings error filed – whether the motion to dismiss is grounded in Order 16 – proceedings defective and should be dismissed - whether as a separate issue the proceedings should be dismissed by reason of the Plaintiff’s failure to take steps to protect its interest in land in earlier National Court proceedings by seeking joinder to those proceedings – equitable principles “he who seeks equity must do equity” considered

Cases cited
Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122
Ragi v Maingu [1994] SC459
Wadau v PNG Harbours Board [1995] PNGLR 357
Luma v Kali [2014] SC1401
Amet v Yama [2010] SC1064
Koim v O’Neil [2016] N6558
East New Britain Provincial Government v Kereme [2017] N6706
Yanasa v Talkan [2017] N6920
Simakade Holdings Ltd. v Dotaona [2018] N7356
Church of Jesus Christ of Latter Day Saints Inc. v Kimas [2022] PGSC 96; SC2280
Peter Makeng v Timbers (PNG) Ltd. [2008] PGNC 78; N3317
Alex Timothy v Hon. Francis Marcus (2014) SC1403
Dads Investment Corporation Ltd. v Samson [2023] PGSC 134; SC2485
Manase v Polye [2021] PGSC 76; SC2150
Angui v Wagun [2011] N4194
Markham Farming Company Ltd. v Wanga [2019] N8103
Asakusa v Kumbakor [2008] N3303
Kiap v Kaspar [2023] PGSC 95; SC2435
Makeng v Timber (PNG) Limited [2007] N3317
Nilkare v Ombudsman [1995] N1344
Ombudsman Commission v Yama [2004] SC747

Counsel
Mr A Chillion for the plaintiff
Mr A Manase with Mr. Opahi for first defendant
No appearance on behalf of the second, third and fourth defendants

DECISION

1. PURDON-SULLY J: This is the Court’s decision on the First Defendant’s Notice of Motion filed 28 November 2023, as amended on 24 June 2024, seeking that the Plaintiff’s proceedings for judicial review be dismissed as incompetent and an abuse of process on the following bases:
   
   1. the Plaintiff has failed to name the correct decision-maker;
   2. the decisions the subject of judicial review are not in evidence, some of the decisions in evidence made by other people who are not named as parties, their decisions not challenged; and
   100. the Plaintiff’s pleading in its Statement is defective in that it is littered with error, for example, the grounds of review cannot be related to the decision to be reviewed and the relief sought is inconsistent with the relief sought in its Notice of Motion for substantive relief filed and the pleading otherwise littered with error or confusion including a failure to properly describe the correct property the subject of the relief sought;
        
2. The Plaintiff seeks the dismissal of the First Defendant’s motion. While learned Counsel for the Plaintiff submits that the Originating Summons, Statement in Support and other supporting documents, prepared internally by his client’s legal section, were rushed in preparation because a Writ of Possession had been issued, it is submitted that the proper party has been named, and the correct party is the Second Defendant, the Secretary of the Department of Lands and Physical Planning and the decision was made by his predecessor. Further, it is contended that the First Defendant is bound by its Notice of Agreed and Disputed Facts and Legal Issues (NADFLI).

BACKGROUND

3. The following facts are either unchallenged or supported on the documents in evidence.
4. The Plaintiff is the statutory body under the provisions of the Forestry Act 1991 responsible for the management of the forestry resources of Papua New Guinea.
5. The Plaintiff occupies State land described as Volume 19, Folio 220, Section 19, Allotment 8 (Montoro Street), Morobe Province (the subject land).
6. The First Defendant is a company registered on 27 February 2004 under the Companies Act, who, on 7 February 2012, was awarded a State Lease or Title over the subject land.
7. The Second Defendant is the Secretary of the Department of Lands & Physical Planning (DLPP) who has the control and management of the affairs of any dealing with land in Papua New Guinea pursuant to the provisions of the Land Act 1996.
8. The Third Defendant was the Chairman of the PNG Land Board whose job involves recommending to the relevant Minister to grant State Lease or title pursuant to s 57 of the Land Act.
9. The Fourth Defendant is the State.
10. Prior to the inception of the Forestry Act 1991 the Plaintiff was referred to as the Department of Forestry, the Plaintiff’s predecessor occupying the subject land since 1972, the subject land used to carry out its national policies and functions.
11. Prior to it being awarded to the First Defendant on 8 February 2012, the subject land was shared by the Plaintiff with the Department of Works and the Department of Education – Archives.
12. In about 2009 the First Defendant, who was seeking to expand its business, made enquires with the Allocations Officer of the DLPP in Waigani for vacant land in Lae.
13. The First Defendant was advised that it could apply for part of the subject land occupied by the Plaintiff.
14. On 19 May 2010 the First Defendant made application under the Land Act to the DLPP for a business/commercial lease of the subject land.
15. On 19 October 2010, the then Secretary of the DLPP, Mr Pepi Limas, Delegate of the Minister, issued a notice of exemption from advertisement pursuant to s 45 of the Land Act.
16. By letter dated 14 November 2011, the First Defendant was informed by the then Chairman of the Land Board, Mr Keith Lahui, that it had recommended title to the subject land (Land Board Meeting No 03/2011) in the form of a 99 year lease. The letter enclosed a copy of the recommendation.
17. On 24 January 2012, by Notice under ss 75 and 76 of the Land Act under the hand of the then Secretary for DLPP, Mr John Ofoi, the First Defendant was informed that in the National Gazette on 20 January 2012 it was the successful applicant for lease of the subject land. It was requested to complete an attached Notice of Acceptance under s 76 of the Land Act by 24 February 2012.
18. On 28 January 2012, the First Defendant signed the Notice of Acceptance of a Lease by Successful Applicant under s 78 of the Land Act, addressed to the then Secretary of the DLPP.
19. On 7 February 2012, pursuant to s100 of the Land Act. the First Defendant was granted a 99 year State Lease with respect to subject land, the document signed by Mr Ofoi as Delegate of the Minister.
20. The grant of lease was gazetted on 17 February 2017 (Gazette No G110 of 2017).
21. It is an agreed fact that due process was followed by the First Defendant in order to apply for title and the grant of State Lease.
22. By letter dated 29 February 2012, Mr Ofoi, the then Acting Secretary of the DLPP notified the Plaintiff that the subject land had been granted to the First Defendant, with the lease commencing on 20 January 2012. The Plaintiff was asked to vacate the subject land to enable the First Defendant to commence its operations.
23. By letter dated 29 February 2012, Mr Ofoi issued a similar Notice to Quit to the other occupants of the subject land, namely the Department of Works and the National Archivist Office.
24. On 5 March 2012, following the grant of title to the First Defendant, the then Acting Secretary for DLPP, Mr Ofio, issued a Notice to Quit under s 145 of the Land Act to the occupants of the subject land, notifying it that its occupation of the subject land was unlawful.
25. By letter dated 12 March 2012 from the First Defendant to the Plaintiff’s Area Manager, the Plaintiff was informed that title to the subject land had been awarded to the First Defendant. The Plaintiff was issued with a Notice to Quit. The letter was acknowledged by the Plaintiff’s Area Manager by rely letter dated 27 March 2012.
26. On 4 July 2013, the First Defendant instituted proceedings in the National Court (WS No 703 of 2012 – Sukiri Investment Limited v Joel Lorma & Ors) (the ejectment proceedings) claiming possession of the subject land together with an order for ejectment, eviction and permanent injunction. The proceedings were issued against the then Secretary of the Department of Works Mr Joe Lorma (First Defendant), the Department of Works (Second Defendant), Ms Vicky Fuifui, National Archivist, National Library and Archives (Third Defendant) and the National Archives and Library (Fourth Defendant).
27. The Plaintiff was not a named party as Defendant in the ejectment proceedings, for reasons that are unclear on the evidence. The Plaintiff was, however, aware of the ejectment proceedings at least by 14 November 2014 because it referred to same in its letter of that date to the Morobe Provincial Works Manager. Notwithstanding its stated “bafflement” in not being joined, it took no steps to be joined as a party to the ejectment proceedings given that it was in its clear interests to do so as one of the three government agencies occupying the subject land, that it was assisting the Public Solicitor’s Office with information with respect to the ejectment proceedings and on 29 March 2017 its representatives had attended a meeting with the other defendant parties and an officer of the State Solicitor to discuss the ejectment proceedings.
28. On 20 August 2019 summary judgment was ordered in the ejectment proceedings by Kandakasi DCJ in favour of the First Defendant (the Plaintiff in these proceedings), that order entered on 23 August 2019.
29. The Defendants in the ejectment proceedings did not appeal that order. Nor did they comply with its terms.
30. On 28 August 2019 the order was served on the Plaintiff. It took no legal steps at the time to address the matter.
31. On 24 February 2020 a Writ of Possession was issued to the Sheriff to evict the occupants of the subject land.
32. The Defendants in the ejectment proceedings filed a Notice of Motion seeking interim ex parte orders to stay the eviction. The application was unsuccessful.
33. On 1 July 2020 the then assistant Director of the National Archives and Library had contacted the Fraud Squad with a range of allegations against the First Defendant and as a result of its agitation a Notice to Show Cause dated 6 February 2020, under the hand of the then Minister for Lands, the Honourable John Rosso MP, was issued to First Defendant as to why its lease should not be forfeited.
34. On 8 July 2020, the First Defendant filed contempt proceedings against the Plaintiff for non-compliance with an order of 20 August 2020. Possibly unsurprisingly given that the Plaintiff was not as party to the proceeding in which the order was made, that application was withdrawn.
35. On 20 November 2020 the Plaintiff instituted proceedings for leave for judicial review with respect to the following decisions:
    1. The decision of the Second Defendant of 19 October 2010, the then Mr Pepi S Kimas as the Delegate of the Minister for Land and Physical Planning that granted an Exemption to the First Defendant from advertising the Tender of Portion 08, Folio 2020, Section 19, Montoro Street, Law, Morobe Province in breach of s 69(2) of the Land Act 1996; and
    2. The decision of the Second Defendant of 19 October 2010, by the then Mr Pepi S Kimas as the Delegate of the Minister of Lands and Physical Planning exempting the said land from advertisement of Portion 08, Folio 2020, Section 19, Montoro Street, Law, Morobe Province and thereby failing to comply with s 69(1) of the Land Act 1996; and
    100. The decision of the Third Defendant through its Meeting No 03/2011 granting the land described as Portion 08, Folio 2020, Section 19, Montaor Street, Lae, Morobe Province to the First Defendant by letter dated 14 November 2011 was contrary to Section 38(2)(a)(b)(c) of the Land Registration Act as the government departments and authority in occupation of the said land had never surrendered their State Lease.
    4. The Second Defendant’s decision to issue a Notice under Section 75 and 76 of the Land Act 1996 informing the Plaintiff that he was the successful applicant for tender of the land Portion 08, Folio 2020, Section 19, Montoro Street, Law, Morobe Province which was published by the National Gazette dated 20 January 2012 was null and void and in breach of Section 69(1) of the Land Act 1996.
    5. The First Defendant’s decision to issue a Notice to Quit under Section 145 of the Land Act 1996 over the land described as Portion 08, Folio 2020, Section 19, Montoro Street, Law, Morobe Province was ultra vires and void.
    6. Further, the Plaintiff seeks leave to review the decision of the First and Second Defendants through its National Land Board wherein on 20 January 2012 a State Lease namely Portion 08, Folio 2020, Section 19, Montoro Street, Lae, Morobe Province (hereinafter referred to as the land) was issued to the First Defendant through its Meeting No 03/2011 based on the premise that:
       • (i) The land was vacant land with persons or entities occupying, using or having redeveloped the land and this available as “vacant” land for leasing to the First Defendant; and
       • (ii) Since the land was “vacant land” the land was exempted from advertisement pursuant to the provisions of Section 68(1) and Section 69(2) of the Land Act 1996 and thereafter grated the land to the First Defendant on 20 January 2020.
36. The Originating Summons also sought interim relief in the form of a stay order.
37. In its Statement in Support the Plaintiff raised the following grounds of review, namely ultra vires/error of law with respect to the provisions of the Forestry Act 1991 and the Land Act 1996; unreasonable and breach of the principles of natural justice as provided in s 59 of the Constitution.
38. Leave to review was granted by the Court on 14 May 2021.
39. On 19 May 2021 the Plaintiff filed its Notice of Motion under Order 16 r 5(1) of the NCR seeking the following relief:

PURSUANT TO Order 16, Rule 5 (1) of the National Court Rules, the Plaintiff SEEKS the following Orders/Reliefs:

1. A DECLARATION THAT the decision of the Second Defendant through the Third Defendant its National Land Board in granting the Land described as State Lease namely Portion 08, Folio 2020, Section 19, Montoro Street, Lae, Morobe Province to the First Defendant on reasoning that the land was vacant undeveloped land be declared as null and void and be revoked.
2. A DECLARATION THAT Second and Third Defendants erred in law in declaring that the land was "vacant land" when the Plaintiff had been in Occupation and has used and developed the land by virtue of Section 139 A of the Forestry Act 1991 (as amended), and therefore the land was never vacant.
3. A DECLARATION THAT the Plaintiffs occupation of the said land by virtue of Section 139 A of the Forestry Act 1991 (as amended), is a property and/or land set aside lawfully, for use by the then Department of Forests Authority and/or the Forest Industries Council thus deemed to have been properly transferred to the Plaintiff under a Certificate Authorizing Occupancy and is the property of the Authority.
4. A DECLARATION THAT the Plaintiff has an equitable interest over the land having been Occupation and continuous possession, use and development of Portion 08, Folio 2020, Section 19, Montoro Street, Lae, Morobe Province since 1977 and hereby the Notice to Quit pursuant to Section 145 of the Land Act dated 05^th March, 2012 is an error in law and is null and void.
5. A DECLARATION THAT the Plaintiff has an equitable right and interest over the land having been in Occupation and continuous possession, use and development of Portion 08, Folio 2020, Section 19, Montoro Street, Lae, Morobe Province since 1977 stops the First Defendants from evicting the Plaintiff from the land and from claiming vacant possession of the land.
6. A DECLARATION THAT that the decision of the Second Defendant through its National Land Board in granting the land State Lease namely Portion 08, Folio 2020, Section 19, Montoro Street, Lae, Morobe Province is illegal, null and void for being in breach of and contrary to Sections 68 and 69 of the Land Act 1996.
7. A DECLARATION THAT that the circumstances pertinent to the decision to grant and issue title over Portion 08, Folio 2020, Section 19, Montoro Street, Lae, Morobe Province by the Second Defendant, through its National Land Board to the First Defendant was shrouded with fraud in those circumstances, there existed constructive fraud in the issuance of the title to the First Defendant for purposes of Section 33 (1) (a) of the Land Registration Act Chapter 191.
8. AN ORDER in the nature of Certiorari to bring up to this Court First Defendant's title over the land Portion 08, Folio 2020, Section 19, Montoro Street, Lae, Morobe Province and for that title to be quashed and set aside forthwith.
9. Further, AN ORDER in the nature of Certiorari to bring up to this Court and quash and set aside the following decisions:
   1. The decision of the Second Defendant in a letter dated 19^th October 2010, made by the then Mr Pepi S Kimas as the delegate of the Minister for Lands & Physical Planning wherein the First Defendant was granted an exemption from advertising the tender of Portion 08, Folio 2020, Section 19, Montoro Street, Lae, Morobe Province in pursuant to Section 69 (2) of the Land Act 1996; and
   2. The decision of the Second Defendant in a letter dated 14^th November 2011, wherein the First Defendant was recommended for exemption from advertisement over the land Portion 08, Folio 2020, Section 19, Montoro Street, Lae, Morobe Province and that the land was granted in favour of the First Defendant through its Meeting No. 03/2011; and
      
   100. The First Defendant's decision to issue a Notice under Section 75 and 76 of the Land Act 1996 stating that it was the successful applicant for tender of the land Portion 08, Folio 2020, Section 19, Montoro Street, Lae, Morobe Province which was published by National Gazette dated 20^th January 2012.
10. In the Interim, a DIRECTION pursuant to Order 16 Rule 3 (8) (a) of the National Court Rules that until the determination of the Application for Judicial Review the grant of leave shall operate as a stay on decision of the Second Defendant through its National Forest Board in granting the land State Lease namely Portion 08, Folio 2020, Section 19, Montoro Street, Lae, Morobe Province when instead the land was never "vacant land" pending determination of the proceedings herein; and
11. AN ORDER in the nature of Mandamus directing the First Defendant to surrender the title over Volume 19, Folio 2020, Lot 8 and Section 19 to the Second Defendant who shall then, through the Registrar of Titles invoke the powers under Section 160 and Section 161 of the Land Registration Act Chapter 191 to cancel the registration of title to the First Defendant in respect of the land Portion 08, Folio 2020, Section 19, Montoro Street, Lae, Morobe Province forthwith.
12. AN ORDER in the nature of a PERMANENT INJUNCTION to be issued against the Defendant's servants, agents and associates from interfering with, intimidating, threatening or harassing the Plaintiff or the Plaintiffs agents, servants and associate's peaceful possession, occupation, use and enjoyment of the land Portion 08, Folio 2020, Section 19, Montoro Street, Lae, Morobe Province.
13. Any other Declarations/Orders that the Court sees fit.
40. On 21 October 2021 an interim restraining order was granted staying the decisions under review together with the enforcement orders in the ejectment proceedings (WS No 703 of 2012).
41. The First Defendant issued two appeals to the Supreme Court. The first appeal was with respect to the grant of leave made on 14 May 2021 (SCA No 34 of 2021). The filing date and Notice of Appeal is not in evidence. That appeal was dismissed on 1 July 2022 (SCM No 66 of 2021).
42. The second appeal, filed on 6 May 2022, was an application for leave to appeal the stay order of 21 October 2021(SCA 154 of 2021). On 1 August 2022, leave was granted to the First Defendant to discontinue the appeal with each party to bear its own costs.
43. On 13 June 2023 the Plaintiff filed a NADFLI.
44. By Amended Notice of Motion filed 26 June 2024 the First Defendant seeks as follows
    1. Pursuant to Order 16 Rule 13(13)(2) a, b (a) and Order 12 Rule 40(1)(b) and (c) of the National Court Rules, the Originating Summons filed on 21 November 2020, be dismissed for failing to disclose a reasonable cause of action, it is frivolous and vexatious and it is an abuse of the process of the Court as it fails to comply with Order 16 Rule 3(2) of the National Court Rules.
    2. Pursuant to Order 16 Rule 13(13)(2)a, b(a) and Order 12 Rule 40(1) (a), (b) and (c) of the National Court Rules, the Statement In Support Under Order 16 of the National Court Rules filed on 21 November 2020, be dismissed for failing to disclose a reasonable cause of action, it is frivolous and vexatious and it is an abuse of the process of the Court as it is riddled with incurable defects and therefore fails to comply with Order 16 Rule 3(2)(a) of the National Court Rules;
    3. Pursuant to Order 16 Rule and Order 12 Rule 40 (1)(c) of the National Court Rules, the Notice of Motion filed on 19 May 2021, be struck out on the basis that it is an abuse of the process of the Court, as the Reliefs sought are not supported by the Statement In Support;
    4. Pursuant to Section 155(4) of the Constitution and Order 12 Rule 1 of the National Court Rules, the entire proceedings be dismissed as the Plaintiff is estopped from challenging the grant of State Lease to the First Defendant as it was a privy, by reason of its conduct, to the earlier proceedings in WS No. 703 of 2013 — Sukiri Investments Ltd vs. Joel Lorma, Secretary Department of Works & Others, and therefore bound by the. Orders made therein;
    5. Costs of the application and/or entire proceedings to the First Defendant/Applicant;
    6. Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith; and
    7. Any further or other Orders the Court deems appropriate.
       

CONSIDERATION

45. Judicial review is available where the decision-making authority exceeds its powers or lacks jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable authority would have reached (Wednesbury principles) or abuses it powers (Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122 at [4]).
46. On 21 November 2020 the Plaintiff issued proceedings for leave for judicial review of decisions that took place on 7 February 2012, some eight (8) years before the filing of its application, decisions now thirteen (13) years old.
47. Leave was granted on 14 May 2021, the First Defendant’s appeal against the grant of leave unsuccessful.
48. The matter was listed for substantive hearing on 12 February 2025, at which time both parties raised issues of competency.
49. The Plaintiff asserts that the Plaintiff’s Amended Notice of Motion is an abuse of process inter alia by reason that the First Defendant is asking this Court to overturn the Supreme Court decision concerning the grant of leave and is seeking to go behind the grant of leave and unwind it, which is an abuse of process. Further, competency applications must be made under Order 16 of the NCR, the First Defendant not citing the proper jurisdiction of the Court, by venturing outside by its reliance on Order 12 r 40 in addition to Order 16 r 13(13) of the NCR.
50. Order 16 r 13 (13)(1) and (2) provides:

(1) Motion

All interlocutory applications shall be made by Notice of Motion. The practice and procedure shall be those prescribed by the National Court Rules from time to time.

(2) Summary disposal

1. Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under Order 16 of the National Court Rules or under these Rules or on any other competency grounds.

b. The Court may summarily determine a matter:

(i) on application by a party; or

(ii) on the Court's own initiative; or

(iii) upon referral by the Registrar in accordance with the procedure set out in (3) below.

......

51. Order 12 r 40(1)(a), (b) and (c) provides:

Order 12

40. Frivolity, etc. (13/5)

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) no reasonable cause of action is disclosed; or

(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

52. The Plaintiff’s submissions are rejected for the following reasons:
    1. Whether the Plaintiff has pleaded the correct decision-maker is a threshold issue, properly raised by the First Defendant, one that goes to the jurisdiction of the Court to entertain an application for judicial review. It is an issue that has, on the authorities, been considered at the substantive stage of hearing notwithstanding leave having been earlier granted (Ragi v Maingu [1994] SC459; Wadau v PNG Harbours Board [1995] PNGLR 357; Luma v Kali [2014] SC 1401).
    2. Issues relevant to leave remain alive after the grant of leave and until the determination of the judicial review precisely because they go to the jurisdiction of the Court.
    100. Competency issues may be raised at any stage either on motion by a party or by the Court on its own initiative (Amet v Yama [2010] SC1064; Koim v O’Neil [2016] N6558; East New Britain Provincial Government v Kereme [2017] N6706; Yanasa v Talkan [2017] N6920).
    4. The issue of who was the correct decision-maker was not raised on appeal, conceded by Counsel for the Plaintiff, the Plaintiff only notifying the First Defendant of the errors in its pleadings after the granting of leave, after the hearing of the Supreme Court appeal and after the signing of the NADFLI. If, as asserted by the Plaintiff, the inclusion of the First Defendant as decision-maker at 1(f) of its Originating Summons was a “typographical error” it was a relevant fact not disclosed by the Plaintiff at the hearing on leave or at the hearing of the appeal (Simakade Holdings Ltd v Dotaona [2018] N7356 at [17]).
    5. While the issue of competency raised by the First Defendant must be grounded in Order 16 (Church of Jesus Christ of Latter Day Saints Inc v Kimas [2022] PGSC 96 at [13]), the Court is not persuaded that the use of the conjunction “and” in its reliance on Order 16 r 13(13) and Order 12 r 40 in its Motion to dismiss renders the First Defendant’s application incompetent or otherwise offends the well-established principle that judicial review proceedings are completely and exhaustively governed by the provisions of Order 16 (Peter Makeng v Timbers (PNG) Limited [2008] PGNC 78; N3317; Alex Timothy v Hon Francis Marcus (2014) SC1403; Church of Jesus Christ of Latter Day Saints Inc v Kimas [2022] PGSC 96; SC2280; Dads Investment Corporation Ltd v Samson [2023] PGSC 134; SC2485 at [7]).
    6. Decisions of the Supreme and National Courts in this jurisdiction have reinforced the principle that the rules are a means to an end, not an end in themselves, and that the Court should always be looking to do justice on the merits of the case and not necessarily compliance or non-compliance with the rules (Church of Jesus Christ of Latter Day Saints Inc v Kimas (supra) at [14] - [17]). Further, not every departure from the rules suggests unfairness, in this case the Plaintiff’s application also grounded in Order 16. Even if the Court is wrong in so concluding, the competency issues raised by the First Defendant go to the jurisdiction of the Court to determine the matter and the Court, as the protector of its process, has an obligation to address the matter.
    7. While as a matter of good practice the merits of the Plaintiff’s application for judicial review should not be challenged by way of interlocutory process (see for example Simakade Holding Ltd per Anis J at [17]; Manase v Polye [2021] PGSC 76; SC2150 per Gavara-Nanu J at [48]), the matters raised by the First Defendant were considered at the judicial review hearing and the Court is otherwise entitled, indeed obliged, to consider any requirement for the grant of leave that goes to the jurisdiction of the Court (Angui v Wagun [2011] N4194 at [25]).
53. The First Defendant raises the following preliminary issues for determination:
    1. Whether the Originating Summons filed on 21 November 2020 should be dismissed for failing to disclose a reasonable cause of action, for being frivolous and vexatious and an abuse of process as it fails to comply with Order 16 r 3(2)(a) of the NCR.
    2. Whether the Statement in Support Under Order 16 of the NCR should be dismissed for failing to disclose a reasonable cause of action, for being frivolous and vexatious, and an abuse of process as it fails to comply with Order 16 r 3(2)(a) of the NCR, the Plaintiff’s application an abuse of process being riddled with incurable defects.
    100. Whether the Notice of Motion for substantive review filed on 19 May 2021 should be struck out on the basis that it is an abuse of process of the Court as the reliefs sought are not supported by the Statement in Support.
    4. Whether the entire proceedings should be dismissed as the Plaintiff is estopped from challenging the grant of State lease to the First Defendant as it was a privy, by reason of its conduct, to the ejectment proceedings and therefore bound by the orders therein.
54. The crux of the First Defendant’s argument is that the Plaintiff’s Statement contains material defects, a principal defect, being that the decisions, the subject of review, were not made by the First, Second and Third Defendants as alleged, resulting in the proceedings being an abuse of process.
55. The Plaintiff, however, relies on the filed NADFLI, the issue as to who was the proper decision maker not being named and the decision the subject to review not being in evidence, not raised by the First Defendant. As such, it is not a matter that can now be raised by the First Defendant. Reliance is placed on Markham Farming Company Ltd v Wanga [2019] N8103 in support of the principle that once a party signs a NADFLI it is binding on the parties.
56. Before I turn to consider the arguments, some general principles are helpful.
57. Judicial review is a strict process and the standard of scrutiny of the pleadings is a high one. It is a scrutiny that enables the Court to determine whether a pleading discloses a reasonable cause of action or whether a pleading is frivolous and vexatious and/or amounts to an abuse of process (Asakusa v Kumbakor [2008] N3303 per Injia DCJ (as he then was) at [21]).
58. The Plaintiff is required to ensure that the decisions sought to be reviewed are clear, the correct decision-maker is named with respect to each decision and that the grounds pleaded contain a clear and concise description of the specific statutory provision or common law duty that has been breached by the making of the particular decision sought to be reviewed by reference to established grounds of review in the Statement in Support. Further the relief sought must be open on the pleadings.
59. The difficulty for the Plaintiff, and ultimately the Court in trying to understand the Plaintiff’s claim, is that the Plaintiff’s pleadings are littered with error and loose language. Attempting to marry the decisions sought to be reviewed, with the actual decision-maker, the pleadings, the evidence in support and the relief sought has been a difficult and thankless task. Inexplicably, and save for the decision to issue the Notice to Quit, at the hearing of the leave application the Plaintiff had not put into evidence the relevant decisions sought to be reviewed (see for example the Affidavit Verifying the Statement in Support of Tunou Sabuin filed 21 November 2020). In the Review Book, filed by the Plaintiff, the relevant decisions first emerge annexed to the Affidavit of Morgan Sukiri, the Managing Director of the First Defendant, filed on 29 November 2022.
60. Judicial review is not meant to be a process of “seek and find” but “show and tell”. It is the Plaintiff who carries the onus to be clear in what decision is to be reviewed, made by whom, what duty was breached and why.
61. The Plaintiff’s main argument centres on the fact that leave was granted with respect to the relevant decisions as detailed in the Plaintiff’s Originating Summons filed on 21 November 2020 and the Supreme Court dismissed the First Defendant’s appeal against the grant of leave. However, those two factors, that is the granting of leave and the dismissal of the appeal against leave, do not disentitle this Court at a substantive hearing from addressing issues that go to its jurisdiction. I repeat and rely upon my earlier discussion of these arguments in relation to the issue of competency of the First Defendant’s motion to dismiss, and where:
    1. it is conceded that the errors in the Originating Summons and Statement in Support were not brought to the attention of the Judge during the hearing of the leave application; and
    2. there is no evidence, conceded by the Plaintiff, that the issues now raised by the First Defendant were the subject of any determination by the Supreme Court on appeal.
62. While the First Defendant has framed the issues in a particular way, the principal issue is whether the decisions to be judicially reviewed in respect of which leave was granted can be judicially reviewed at all because the wrong decision-maker was named at 1 (a), (b), (c), (d), (e) and (f) of the Plaintiff’s Originating Summons filed 21 November 2020, such that there is no decision before the Court that can be reviewed and no utility to the proceedings for review as the Plaintiff cannot be granted the relief it seeks. Put another way, there is no reasonable cause of action before the Court thus rendering the proceedings frivolous and vexatious and an abuse of process.
63. To that end I now turn to a consideration of the decisions sought to be reviewed, the subject of the grant of leave, and in respect of which the relief in the substantive Notice of Motion is sought by the Plaintiff.
64. With respect to 1 (a) and (b) of the Originating Summons, it is contended by the First Defendant that no review can lie against the decision-maker of the decision as it was Pepi S Kimas, as delegate of the relevant Minister, who granted the exemption under s 69(2) of the Land Act, not the Second Defendant.
65. Notwithstanding the Plaintiff’s argument that the Second Defendant, as the current Secretary of Lands and Physical Planning, is the custodial of the decision sought to be reviewed and ultimately answerable for the decision made, the Plaintiff has named the wrong decision- maker. It was the Minister for Lands and Physical Planning through his then delegate Mr Kimas who made the decision to grant an exemption to the First Defendant on 19 October 2010 from advertisement to do with the subject land (1(a) and (b) of the Originating Summons and 2.1(a) and (b) in the Statement in Support) and not the Second Defendant, Benjamin Samson, the Secretary of the DLPP.
66. Having failed to name the correct decision-maker there is no decision to be judicially reviewed before the Court, the relief sought by way of certiorari (Notice of Motion filed 19 May 2021 at [9]) lacks utility and the Plaintiff’s application for substantive relief has no reasonable prospect of succeeding.
67. With respect to 1(c) in the Originating Summons (2.1(c) in the Statement in Support) the Plaintiff was granted leave to seek judicial review of a “decision of the Third Defendant through its Meeting No 03/2011 granting (the subject land) to the First Defendant by letter dated 14 November 2011...”. There are a number of issues to consider here.
68. First, an immediate difficulty for the Plaintiff is that the Third Defendant is named as Sam Wange, Chairman of the National Land Board. Mr Wange, however, was not Chairman of the Board at the time the letter was signed. Mr Lahui was Chairman.
69. Second, if the Plaintiff is contending that the Land Board was the decision-maker^[1] then it should have named the Land Board (an entity created under s 55 of the Land Act 1996), and not the Chairman of the Board, as the Board consists of members other than the Chairman (s 55(2) & (3) of the Land Act; see also Kiap v Kasper [2023] PGSC 95; SC2435 at [39]).
70. Thirdly, it was the Board that made the recommendation to the Minister. The fact that the recommendation was communicated to the First Defendant by letter, under the hand of the Chairman, does not make it a decision of the Chairman alone in his capacity as Chairman. If the Plaintiff sought to judicially review the decision of the Board to make the recommendation then it should have sought to review the decision of the Board. To that end it would be obliged to name each of the members of the person collectively constituting the Board. In naming only the Chairman, the wrong decision-maker was named rendering the Board’s recommendation undisturbed.
71. Fourthly, it was not the Third Defendant who made the decision “granting the land... to the First Defendant”. The Land Board makes a recommendation only, to the Minister pursuant to s 57 of the Land Act. It does not make the decision to grant land. It is the Minister who then decides whether to accept or reject the recommendation. The correct decision-maker would then be the Minister, following acceptance of the Board’s recommendation.
72. The agreed facts at [14] and [15] of the NADFLI to the effect that the First Defendant was advised by the Land Board that it had recommended the title to the subject land by Land Board Meeting No 03/2011 and that the Land Board Meeting was then gazetted on 20 January 2012 do not advance matters. Putting to one side that the relevant gazette notice is not in evidence, its only reference being in the Notice issued by Mr Ofoi under ss 75 and 76 of the Land Act, the First Defendant being “advised by the Land Board that it had been (sic) recommended the title of the said land by Land Board Meeting No 03/2011” does not mean the Land Board made the decision to grant the title.
73. Fifthly, while it is pleaded at 2.1(a) of the Statement in Support that the decision of the Third Defendant is contrary to s 38(2)(a),(b), (c) of the Land Registration Act it is an asserted breach of a statutory provision that seeks to ground a judicial review that is not otherwise pleaded at [4] in the Statement in Support. Section 38 of the Land Registration Act, which is titled Surrender of State Lease, would appear to have no application to the circumstances of the case as the Plaintiff does not plead that it had State Lease title to surrender.
74. In summary, the wrong decision and/or decision-maker is being sought to be judicially review, the application for judicial review of the decision as pleaded defective and the declaratory relief sought at [6] of the Plaintiff’s substantive Notice of Motion unsupported on the pleadings and evidence.
75. The Plaintiff seeks to next judicially review a decision of Mr Samson as Secretary of the Department who is asserted to have issued a Notice under ss 75 and 76 of the Land Act (1(d) of the Originating Summons). However, it is not Mr Samson, but Mr John Ofoi, the then Secretary of the Department, who made the decision.
76. The Plaintiff seeks a judicial review of the decision of the First Defendant to issue a Notice to Quit under s 145 of the Land Act on the basis that the decision of the First Defendant was ultra vires and void (see para 1 (e) of the Originating Summons and 2.1(e) of the Statement in Support filed 21 November 2020). However, it is uncontroversial that the First Defendant is not a public authority. Judicial review is concerned with public law. The First Defendant’s purported decision to issue a Notice to Quit is thus not amenable to judicial review. There being nothing to judicially review, the relief sought by the Plaintiff in the form of certiorari at 5.9(c) and (d) of its Statement in Support and 9(c) of its substantive Notice of Motion with respect to purported decisions by the First Defendant, again, futile, the Plaintiff with no reasonable cause of action capable of succeeding.
77. The same problem arises with respect to the purported decision at para 1(f) of the Originating Summons in which respect leave was also granted. Putting to one side for the moment the difficulty in marrying that decision and named decision-maker with what is pleaded in the Statement in Support (see for example, 2.1(d) and 4(d) including the relevant statutory provisions asserted to be breached), there is nothing to judicially review as the decision to grant State Lease, the subject of the review, was not made by either the First or the Second Defendant. It was conceded by the Plaintiff during oral submissions that the First Defendant was not the decision-maker. Nor was the Second Defendant the decision-maker, as the decision sought to be reviewed, one dated 20 January 2021, was purportedly made by the Third Defendant on the Plaintiff’s own pleading.
78. To compound matters, what the Plaintiff has then done is combine both the Second and Third Defendant in its pleading with respect to its grounds of review at [4] of its Statement in Support and the duty alleged to have been breached by both, when the decisions to be reviewed as pleaded at 2.1 of the Plaintiff’s Statement are with respect to decisions individually made by either the First, Second or Third Defendants.
79. Further, and with respect to 1(f) of the Originating Summons, the submission on behalf of the Plaintiff that “typographical error or misspelling or not correctly typing the correct citations of law should not be taken to override the real intention of what is supposed to be pleaded” must be rejected. It is a submission that compounds the Plaintiff’s difficulties.
80. This is because, firstly, it is the Plaintiff that prepares the documents it seeks to rely upon to ground its application for judicial review. Neither the Court nor the parties who appeared at the leave stage are mind readers. Nor should they be required to engage in legal gymnastics to make sense of a pleading and supporting evidence that on any fair view was poorly prepared (“rushed” on the submission of Counsel for the Plaintiff). It is a finding that does not go behind nor seek to unpick the grant of leave which is ultimately an exercise in judicial discretion. The Court, and the parties, are entitled to rely upon the documents that the Plaintiff seeks to rely upon and take at face value that what is pleaded in a Statement in Support is meant to be pleaded. It should not be left to the Court or a party to “assume”, for example, that because s 139 of the Forestry Act is used in one place in the Statement in Support and s 139A in another or because the wording pleaded in s 139 is not found in that section but in s139A, that the Plaintiff’s intention was something different to what was pleaded. “Assumption” can be a dangerous business in high stakes litigation, at any time, let alone in a judicial review process that is “special”, “peculiar” and “strict” (Makeng v Timber (PNG) Limited [2007] N3317 at [16] & [20]); Alex Timothy v Hon Francis Marus [2014] SC1403 (Injia CJ, Davani & Gabi JJ) at [18]; Church of Jesus Christ of Latter Day Saints v Kimas [2022] PGSC 96; SC2280 at [8] – [9]).
81. Secondly, if there were typographical errors at play, no reasonable explanation was advanced as to why the Plaintiff did not seek to rectify its errors on a timely basis either by way of leave to amend its Statement in Support or notification to the First Defendant until some 2.5 years after the institution of proceedings for leave. The notification was only made after the filing of the NADFLI on 13 June 2023, in respect of which the Plaintiff now requires rigid adherence by the First Defendant. It was at that stage that the First Defendant then filed its application to dismiss the proceedings. It is incumbent on those who seek the Court’s assistance to prepare their material properly, even if under time pressure.
82. In short, neither the First nor Second Defendant were the decision-makers with respect to the decision to be reviewed at 1 (f) of the Originating Summons. That error renders the judicial review of those decisions defective, the Court unable to grant the relief sought.
83. The above fundings make it unnecessary to address in further detail the relief sought by the Plaintiff in its Notice of Motion filed on 19 May 2021. The reliefs sought must relate to the pleading. The Plaintiff seeks declaratory relief at [8.7] of its Notice of Motion based on constructive fraud in the issuance of title to the First Defendant (see also [5.7] of its Statement in Support). However, the Plaintiff does not plead fraud as a separate ground of review in its Statement in Support.
84. In summary the proceedings should be dismissed because:
    1. The nature of judicial review requires that the right person apply for an appropriate remedy against the right decision made by the correct person at the right time and that the Court is thereafter persuaded to grant the remedy sought (Nilkare v Ombudsman [1995] N1344; Ombudsman Commission v Yama [2004] SC 747).
    2. Once leave is granted the Plaintiff is constrained by its pleadings unless leave is granted to amend. The Plaintiff, who carries the onus, has not made out a case to warrant judicial review of the decisions sought to be reviewed.
    100. The proceedings for judicial review are defective for the reasons outlined. The relief sought cannot be granted. The fact that leave was granted earlier to review the relevant decisions matters not as the issues raised by the First Defendant go to the jurisdiction of the Court to entertain the application for review before it.

A further consideration

85. To my mind, there may be another reason to dismiss the Plaintiff’s application for judicial review as an abuse of process.
86. It is a consideration that arises on the further submission of the First Defendant that the proceedings should be dismissed as the Plaintiff is estopped from challenging the grant of State lease to the First Defendant by reason of it being privy, by reason of its conduct, to the entire ejectment proceedings in WS No 703 of 2012 and was therefore bound by the orders therein.
87. The Court does not accept that submission. The Plaintiff was not a party to the ejectment proceedings. Nor could the Plaintiff be reasonably criticised by the First Defendant for failing to appeal orders made in proceedings to which it was not a party.
88. However, it raises an interesting question in the context of an application for judicial review, where equitable principles apply, in circumstances where the Plaintiff seeks to review decisions, now thirteen years old, and where the Plaintiff’s inaction in early challenging the decision to grant State Lease to the First Defendant and where it did not seek to be joined in the earlier ejectment proceedings of which it had notice and in which it had a clear interest as to outcome.
89. In particular, its lack of engagement in the ejectment proceedings over a period of at least five (5) years, is unexplained.
90. Put another way, the question that arises is whether it is an abuse of process for the Plaintiff to now seek relief by way of judicial review proceedings to protect its interest in the subject land, when it did nothing in earlier court proceeding to protect that interest and there is no evidence to suggest that it did not have the opportunity to do so.
91. The maxim “Equity aids the vigilant, not those who slumber on their rights”, arises.
92. In my respectful view, the First Defendant’s failure to serve the Plaintiff and name it in the ejectment proceedings, of which the Plaintiff lays complaint, does not excuse the Plaintiff, a long-term occupant of the subject land, from taking the legal steps open to it to protect its interests and do so with expedition. It is difficult, for example, to complain about the surprise of a summary judgment order or other orders made by the Court in the ejectment proceedings when you, prima facie, have a voice but choose to not to be heard. The evidence suggests that notwithstanding its knowledge of proceedings (for years), proceedings that directly affected its interests, the Plaintiff was content to adopt the role of “observer” without direct involvement other than as a potential witness (see for example Annexures “Q”, “S2”, “S3”, “U” to Affidavit Verifying Statement in Support of Tunou Sabuin filed 21 November 2020 and that affidavit generally; affidavit of Absalom Haiyo filed 27 November 2020).
93. Given my ruling in dismissing these proceedings for the reasons earlier outlined, it is not necessary for me to express a concluded view on this issue. I would have benefitted from further submissions, the point not specifically raised by me during the course of oral submissions, rather one on which I reflected during the preparation of this judgment.

ORDERS

94. In consequence I make the following orders:
    1. The Plaintiff’s application for judicial review is dismissed.
    2. For clarity, the dismissal of these proceedings will discharge the orders made on 12 October 2021 for stay and restraints.
    3. The Plaintiff pay the Defendants costs on a party and party basis to be agreed or taxed.
    4. Time to abridge.

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Lawyers for the plaintiff: Chillion Lawyers
Lawyers for the first defendant: Manase & Co Lawyers

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^[1] Clear from the NADFLI supported by way of reasonable inference from a combined reading of 1(f) of the Originating Summons and the Plaintiff’s pleading as to relevant background facts, its grounds of review and the relief sought by it at 5.1, 5.6 and 5.7 of its Statement in Support, which makes reference to the decision being made through the National Land Board