Church of Jesus Christ of Latter-Day Saints Inc v Kimas [2022] PGSC 96; SC2280 (19 August 2022)

SC2280

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 14 OF 2021

BETWEEN:
THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS INC.
-Appellant-

AND:
PEPI KIMAS as Delegate of the Minister for Lands & Physical Planning
-First Respondent-

AND:
HON. JUSTIN TKATCHENKO as Minister for Lands & Physical Planning
-Second Respondent-

AND:
OSWALD TOLOPA as Acting Secretary
-Third Respondent-

AND:
BENJAMIN SAMSON as Registrar of Titles
-Fourth Respondent-

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
-Fifth Respondent-

AND:
LADY NI YUMEI CRAGNOLINI
-Sixth Respondent-

Waigani: Kandakasi DCJ, Polume-Kiele & Dowa, JJ
2021: 28^th October
2022: 19^th August

APPEAL – Appeal against decision dismissing judicial review application after grant of leave - Clear error of law and findings of fact by trial judge made out – Appeal allowed.

JUDICIAL REVIEW– Practice and procedure – objection to competency of notion for substantive review application taken at hearing – Exclusive process and procedure under Order 16 of the National Court Rules – No provision for objections to competency – No leave sought and granted – Objection based on general provisions of the National Court Rules O.4, r. 49 (8) - Failure to consider interest of justice and need for dispensation of the requirements of the rules under O.1, r.7 of the National Court Rules – Appeal grounds raising these issues upheld.

EVIDENCE – Findings of fact – agreed statement of facts and issues – effect of – no issue on the relevant facts – undisputed facts established the due process for forfeiture of State Leases under s. 122 Land Act 1996, giving of Notice to Show Cause, actual forfeiture of State Lease and subsequent grant of State Lease to third parties not followed – trial judge fell into clearly identifiable error in finding due compliance of the relevant requirements – Findings reversed and decisions of the first to the fifth respondents quashed and appellant’s interest in relevant State Lease restored.

COSTS – Costs usually follow the event on party/party basis – flawed judgment led to an order for costs on an indemnity basis – no reason given for making such an order – undisputed facts formed foundation for costs in favour of the appellants on indemnity basis against the respondents – appeal upheld and order for costs reversed in favour of the appellant on indemnity basis.

LEGAL REPRESENTATION – Representation of the State and State departments, authorities, and agencies – per the decision in The State v. Zacchary Gelu & Manorburn Earthmoving Limited (2003) SC716, which conflicts with the decision in Simon Mali & Others v. The State (2002) SC690 requires the Solicitor General to act only upon instructions of the Attorney General in each case – Until the conflict is resolved by a 5 or more-member Supreme Court, the Solicitor General or any officer from his office is precluded from appearing in Court.

Facts:

Without giving notice to show cause as required by s. 122 of the Lands Act 1996, the first to the fifth respondents forfeited and subsequently granted the appellant’s State Lease over land described as State Lease Volume 71 Folio 225 (the Plaintiff’s State Lease) of Portion 1194, Milinch Granville, Fourmile Moresby, NCD being the whole of the land described in the State Lease. The appellant discovered these from affidavit evidence filed by the sixth respondents in defence of proceedings the appellant filed against that respondent based on trespass together with evidence of a purported National Gazette for the relevant decisions of the first to the fifth respondents. Upon that discovery the appellant conducted searches and established that records at the Department of Lands and Physical Planning (DL&PP) was either lost or had gone permanently missing and the purported gazettal were not genuine. The appellant therefore withdrew the proceeding based on trespass and successfully sought leave for judicial review of the relevant decisions after exhausting the available remedy of appeal to the Minister for Lands against the relevant decisions. The relevant facts were not disputed and formed part of a statement of the relevant facts and issues for trial settled and agreed to by the parties. Despite that and the grant of leave for judicial review, the learned trial judge found the appellant had unduly delayed filing for judicial review, the appellant was deceitful and not genuine, it should have amended the earlier proceedings and seek judicial review in those proceedings and the due process under the Lands Act were complied with. Those findings and decisions were arrived at following a motion for dismissal of the substantive review application at the hearing of the substantive review on grounds of the motion for the substantive judicial review not citing the correct provisions of the National Court Rules, which motion was based on O.4, r. 49 (8) of the National Court Rules. At the hearing of the appeal, only counsel for the first to the fifth respondents appeared but clearly without specific instructions from the Attorney General and any or all of these parties.

Held:

1. Judicial review proceedings are completely and exhaustively governed by the provisions of Order 16 of the National Court Rules and as such, other or the general provisions of the National Court Rules, including O.4, r. 49 (8) does not apply. Cited and applied: Peter Makeng v. Timbers (PNG) Limited & Ors (2008) N3117; Alex Timothy v. Hon Francis Marus (2014) SC1403 and Peter O’Neill v. Nerrie Eliakim (2016) SC1539.
   
2. The learned trial judge fell into a clearly identifiable error in entertaining the application based on O.4, r. 49 (8) and not Order 16 of the National Court Rules and which decision went against well-established law and without in any case considering dispensation of the strict requirements of the rules of the Court under O.1, rr. 7 and 8 of the National Court Rules to do justice on the substantive merits of the case especially after an arguable case was established and leave for judicial review was granted: Cited and applied: In Public Officers Superannuation Fund Board v. Sailas Imanakuan (2001) SC677; PNGBC v. Jeff Tole (2002) SC694; Philip Takori v. Simon Yagari (2008) SC905; Air Niugini Ltd v. Agnes Puri Unagi (2007) SC901 and Niugini Mining Ltd v. Joe Bumbandy (2005) SC804.
   
3. The learned trial judge’s finding that the appellant had unduly delayed filing for judicial review, was deceitful and not genuine, it should have amended the earlier proceedings and seek judicial review in those proceedings and the due process under the Lands Act were complied with, were seriously flawed, and required immediate correction because:
   
   • (a) the only evidence and undisputed facts before the learned trial judge spoke clearly of the due process not being followed which was revealed amongst others by the purported show cause notice, forfeiture and grant of the State Lease to the sixth respondent were not communicated to the appellant as the registered title holder, the appellant met all of the requirements under the Lands Act as a registered title holder to secure and keep its title to the State Lease, the relevant file for the State Lease at the DL&PP went missing with no explanation provided by the DL&PP and the purported gazettal notice produced by the sixth respondent in her defence of the first of the appellant’s proceeding was fake not produced and officially coming from the Government Printer;
     
   • (b) the respondents produced no evidence in rebuttal of the evidence adduced by the appellant and more so the evidence demonstrating due compliance of the requirements of the Lands Act not being followed;
     
   • (c) the decision was therefore without any factual foundation and against the weight of the established and undisputed facts;
     
   • (d) the credibility of any of the witnesses called for or by the appellant was not an issue before the learned trial Judge;
     
4. The instances of purported show cause notices being issued followed by forfeitures of the interest of many innocent title holders of State Leases titles or interest and grant of State leases to other persons without following the due process under the Lands Act are common occurrences. The respondents produced no evidence of this abating, which calls for much care, caution, and diligence on the part of the Courts before coming to a decision that concerns the kinds of issues raised in these proceeding or others against the DL&PP’s actual or purported decisions and actions, which caution the learned trial judge failed to exercise or apply: Cited the decisions in: Yakananda Business Group Inc v Minister for Lands & Physical Planning (2001) N2159; Mount Hagen Local Level Government v. Kimas (2012) N6044; North Fly Development Corporation Ltd v. Kimas (2015) N6122; Markham Farming Co Ltd v. Wanga (2019) N8103; Emas Estate Development Pty Ltd v. Mea, Swokin, and The State [1993] PNGLR 215 and Lae Bottling Industries Ltd v. Lae Rental Homes Ltd (2011) SC1120 as instances and recurrence of the kind of conduct in question.
   
5. Costs usually follow the event on a party/party basis unless a case is made out for a different order. In the present case, the undisputed facts warranted an order for costs in favour of the appellant against the respondents on an indemnity basis. The learned trial Judge therefore erred in not providing any reasons for his decision and ordering costs on an indemnity basis against the appellant: Cited and applied: Opi vs Telikom (PNG) Ltd (2020) N8290.
   
6. Until the conflict in the Supreme Court’s decisions in the matter of The State v. Zacchary Gelu & Manorburn Earthmoving Limited (2003) SC716 and Simon Mali & Others v. The State (2002) SC690 is resolved by a five or more-member Supreme Court, the Solicitor General is required to act only upon instructions of the Attorney General in each case in which the State or a State department, agency or authority is involved and as such the Solicitor General or any officer from his office is precluded from appearing in Court without such instructions.
   
7. All grounds of the appeal were upheld with the appeal in turn upheld with costs ordered on an indemnity basis against the respondents with various orders in favour of the appellant against the office of the Solicitor General and the DL&PP.
   

Cases Cited:
The State v. Zacchary Gelu & Manorburn Earthmoving Limited (2003) SC716
Sir Mekere Morauta and The Independent State of Papua New Guinea and John Wakon (No 1) (2001) N2103
Simon Mali & Others v. The State (2002) SC690
Hilary Singut v. The State (2008) SC910
Polem Enterprise Ltd v. The Attorney General and Ors (2008) SC911
Peter Makeng v. Timbers (PNG) Limited & Ors (2008) N3117
Alex Timothy v. Hon Francis Marus (2014) SC1403
Peter O’Neill v. Nerrie Eliakim (2016) SC1539
William Powi v. Southern Highlands Provincial Government (2006) SC844
In Public Officers Superannuation Fund Board v. Sailas Imanakuan (2001) SC677
PNGBC v. Jeff Tole (2002) SC694
Philip Takori v. Simon Yagari (2008) SC905
Air Niugini Ltd v. Agnes Puri Unagi (2007) SC901
Niugini Mining Ltd v. Joe Bumbandy (2005) SC804
Lowa v. Akipe [1991] PNGLR 265
Sir Arnold Amet v. Peter Charles Yama (2010) SC1064
Mountain Catering Ltd v. Frederick Punangi, Secretary, Department of Defence, and 2 Ors (2013) SC1225
Digicel (PNG) Ltd v. Jim Miringtoro (2019) SC1850
The State v. Lohia Sisia [1987] PNGLR 107
Nakun Pipoi v. Viviso Seravo, Minister for Lands (2008) SC909.
Edward Kae v. Mondo & Ors (2020) N8681
NTN v. PTC [1987] PNGLR 70
Hii Yii Ann v. Canisius Kami Karingu (2003) SC718
Daniel v. Air Niugini Ltd (2017) SC1886.
Yakananda Business Group Inc v. Minister for Lands & Physical Planning (2001) N2159
Mount Hagen Local Level Government v. Kimas (2012) N6044.
North Fly Development Corporation Ltd v. Kimas (2015) N6122
Markham Farming Co Ltd v. Wanga (2019) N8103.
Emas Estate Development Pty Ltd v. Mea, Swokin, and The State [1993] PNGLR 215.
Lae Bottling Industries Ltd v. Lae Rental Homes Ltd (2011) SC1120
Opi vs Telikom (PNG) Ltd (2020) N8290.

Counsel:

Ms. M. Tusais, for the Appellant
Ms. B. Kulumbu, for the First to the Fifth Respondents

DECISION

19^th August, 2022

1. KANDAKASI, DCJ: I have had the opportunity to read the draft decision of my brother Dowa J and respectfully agree with his honour’s conclusion on this appeal for the reasons his honour gives subject to a few comments of my own.
   

The Appeal

2. This appeal is against a decision of the National Court dismissing a substantive judicial review application after grant of leave for review. The decision appealed against, also ordered costs on an indemnity basis against the appellant. The learned trial Judge based his decision on his finding that the motion for the substantive judicial review application (the application) was incompetent for not meeting the requirements of O.4, r. 49 (8) National Court Rules, undue delay in bringing the application and his finding that the due process under the Lands Act was followed and hence actions of the respondents were in order.
   
3. Advanced in support of the appeal are number of grounds which come under three broad categories. These are that the learned trial Judge:
   

(1) erroneously allowed the issue of competency of the motion to be raised belatedly.

(2) erred in finding the Appellants motion was incompetent for not citing the jurisdictional foundation for the reliefs sought;

(3) erroneously finding there was undue delay and the process under the Lands Act were followed which was against the weight of the evidence; and

(4) erred in ordering costs on an indemnity basis against the appellant, without good reason.

Issues for determination

4. These arguments or claims present the following issues for determination:
   
   • (a) Was the motion for the substantive judicial review incompetent for not complying with O.4, r. 49 (8) of the National Court Rules by not citing the jurisdictional foundation for the reliefs sought?
     
   • (b) Was the sixth respondent entitled to belatedly raise and succeed on the issue of the application being incompetent?
     
   • (c) Was there evidence supporting the learned trial Judge’s finding that:
     
     • (1) the appellant unduly delayed filing and prosecuting its application; and
       
     • (2) the respondents followed the legislative process under the Lands Act?
       
   • (d) Did the learned trial Judge err in ordering costs on an indemnity basis against the appellant?
     
5. Issues (a) and (b) can conveniently be dealt with together whilst issues (c) and (d) can be dealt with on their own. I will thus address each of these issues in the order they are presented, starting with the first and second issues first.
   

Issues (a) & (b) – Competence of application and belated raising of the Issue

6. Following a grant of leave for judicial review, the appellant filed a notice of motion in accordance with O. 16, r. 5 of the National Court Rules. Essentially the motion read:
   

“Take notice that pursuant to the leave of the Honourable Justice Les Gavara-Nanu given on 12^th February 2019, at the National Court of Justice, Waigani, move the Court for:

1. An order in the nature of certiorari to bring into this Honourable court and quash the following decisions of the Defendants:
   
   1. A decision by the First Defendant as delegate of the Second Defendant’s predecessor Minister for Lands on or about 23^rd May 2007 and purportedly published in Gazette G82 dated 24 May 2007 to forfeit the Plaintiff’s State Lease Volume 71 Folio 225 (the Plaintiff’s State Lease) of Portion 1194, Milinch Granville, Fourmill Moresby, NCD being the whole of the land more particularly described in the State Lease (the land).
      
   2. A decision by the Second Defendant on or about 26 October 2011 (or some other date) to grant a State Lease Volume 33 Folio 200 (the New State Lease) of the Land to Lady Ni Cragnolini.”
      
7. At the hearing of the substantive review, the sixth respondent belatedly took issue with the competency of the application for the substantive review. The objection was based on O.4, r. 49 (8) National Court Rules in that, the motion for the substantive review did not contain a concise reference to the jurisdiction of the Court to grant the orders sought. The appellant expressly opposed that belated raising of that issue.
   
8. It is now clearly established law that judicial review is a special process exclusively provided for by Order 16 of the National Court Rules 1989. Applications for judicial review and any issue as to its competence, summary dismissal and any other issue must be taken in accordance with the process and procedure provided for thereunder. Clearly therefore, the provisions of the National Court Rules do not apply to judicial review proceedings. If the position was unclear or obscure, the decision in Peter Makeng v. Timbers (PNG) Limited & Ors (2008) N3117, by Injia DCJ (as he then was) clarified the correct position at law. Relevantly, the then learned Deputy Chief Justice said:
   

“16. Judicial review is a special procedure developed by the Courts to deal with complaints by persons aggrieved by decisions made by public administrative bodies and persons exercising public power conferred by statute. It is discretionary. Ordinarily, it is not the Court’s function to intervene in the administrative functioning of statutory authorities except in cases where the statutory authority has committed a legal error. Judicial review is restrictive and this is achieved in several ways:

1. by prescribing comprehensive and exhaustive rules of practice and procedure, which inter alia, confers jurisdiction to review administrative acts in strict and mandatory terms;
2. by restricting the grounds in which judicial review procedure is available: see Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122;
3. by prescribing special types of relief in the nature of prerogative orders which are available in judicial review;
4. exercising the discretion under the rules is restrictive.”

(Emphasis supplied)

9. This Court in endorsing the decision in Peter Makeng (supra) case, in Alex Timothy v. Hon Francis Marus (2014) SC1403, per Injia CJ, Davani & Gabi JJ (as they then were) said at [18] – [22]:
   

“18. These peculiarities and processes, common only to Judicial Review proceedings, were discussed at length in Peter Makeng v. Timbers (PNG) Limited and others (2008) N3117.

19. In the event, an interlocutory application to dismiss the Order 16 Originating Summons is filed and made before leave for review is granted, then such an application is permissible but must be brought within the provisions allowing such applications, found only in Order 16 and not elsewhere in the National Court Rules. Likewise, an application to dismiss a substantive application for judicial review must be brought within the provisions allowing such applications, found in Order 16 and not elsewhere in the National Court Rules.
    
20. This Court and the National Court have over the years, as is reflected in the decisions referred to above, emphasised the special and peculiar role played by the Judicial Review procedure. This process is exclusive which is why Order 16 guides the way Judicial Review proceedings are conducted.”
    

(Emphasis supplied)

10. The decision in Alex Timothy v. Hon Francis Marus (supra) also took the opportunity to correct departures from the well settled legal position as represented by the decision of this Court in Mek Kuk v. Peter O’Neill (2014) SC1331, per Batari, Davani (as she then was) and Manuhu JJ which held that other provisions of the National Court Rules apply to judicial review proceedings. In so correcting, this Court said at [21] and [22]:
    

“21. The previous view by the Courts in this jurisdiction that because proceedings were commenced by way of Originating Summons, that Order 4 Rule 36 applies, is clearly a misapprehension because as emphasised in the cases referred to above, an Originating Summons in a Judicial Review proceeding is not the same as an ordinary Originating Summons.

22. Additionally, Order 16 does contain its own provisions for summary disposal of an application for leave for review or the substantive application for judicial review for reasons of want of prosecution, want of competence or for any other reason. The Court may summarily dispose of a proceeding on application by a party, of the Court’s own motion or on referral by the Registrar: Order 16 Rule 13 (2). The application must be made by Notice of Motion: Order 16 Rule 13 (1). Clearly, there is no room for a party to invoke Order 4 Rule 36 or any other similar provision found elsewhere in the National Court Rules.”
    
11. In Peter O’Neill v. Nerrie Eliakim (2016) SC1539, per Kandakasi J (as I then was), Hartshorn & Kassman JJ, which was a decision that came after the decision in Alex Timothy v. Francis Marus (supra) reaffirmed the settled legal position in these terms:
    

“17. Order 16 Rule 8(2) defines “interlocutory application” and in our view restricts it to what is described in the heading to Rule 8. Given this we respectfully disagree with the Supreme Court in Kuk v. O’Neill (supra) if the effect of its decision was that any interlocutory application pursuant to any Rule in the National Court Rules in addition to those referred to in Order 16 Rule 8(2) can be made in a judicial review proceeding.

18. Given this we prefer the reasoning and conclusion in Timothy v. Marus (supra) and are of the view that Order 16 National Court Rules provides a complete and exclusive procedure for interlocutory applications involving judicial review proceedings. Consequently, in the National Court in a judicial review proceeding, if a notice of motion that contains an application for interlocutory relief that is not brought pursuant to a Rule in Order 16 is accepted, a fundamental error is committed. This is because such a notice of motion has not engaged the jurisdiction of the Court to permit it to adjudicate upon an interlocutory application in a judicial review proceeding.”
    

(Emphasis supplied)

12. This settled position of the law is consistent with the law generally that, where specific provisions are made for any process or procedure, the specific provision applies to the exclusion of any provision of general application: See for example the decision in William Powi v. Southern Highlands Provincial Government (2006) SC844, per Jalina, Gavara-Nanu and Kandakasi JJ (as I then was).
    
13. In the present case, the learned trial Judge fell into a clear and easily identifiable error by his decision to allow the general provisions of O. 4, r. 49 (8) of the National Court Rules to apply. That decision clearly went against the well accepted legal position that all judicial review proceedings are governed by the provisions made in Order 16 to the exclusion of the other provisions of the National Court Rules. Hence, in my view, the issue of competence had to be grounded under any of the provisions in Order 16 and not the general provisions of the National Court Rules. That was clearly not the case before the learned trial Judge.
    
14. I am also of the view that the learned trial Judge’s decision went against another well settled legal position. An expression of that clear legal position is in the National Court Rules Order 1, rr.7 and 8. These provisions empower the Court in appropriate cases to dispense with strict compliance of the rules to do justice on the substantive merits of each case. Relevant decisions of the National and Supreme Court make this position by their clear views that the rules are only a means to an end and not an end in themselves. In Public Officers Superannuation Fund Board v. Sailas Imanakuan (2001) SC677, the Supreme Court per Amet CJ (as he then was), Gavara–Nanu J and Kandakasi J (as I then was) elaborated on this power and its purpose in the following terms:
    

“... O.1 r.7 of the NCRs, compliments s. 155 of the Constitution by giving the Court the power to dispense with a non-compliance of the rules either before or after the need to do so has arisen in the interest of justice. It is now settled law that, the Rules of the Court are not an end in them but a means to an end in all matters going before the Courts. They are only a code of practice and there is no doubt where justice so requires, strict adherence to the rules can be dispensed with in the circumstances of a particular case. For more discussion on this see Anthony John Polling -v- Motor Vehicle Insurance (PNG) Trust & Others [1986] PNGLR 228 at page 230 and The South Pacific Post Pty Ltd -v- Ephraim Ikenna Maduabuchi Nwokolo[1984] PNGLR 38 at page 46. It should be borne in mind that, the Rules are designed to guide and assist the Courts and the parties to reach a fair, orderly and expeditious resolution of matters before the Courts. Their application was thus intended to be flexible: See Andrew Kimberi of Paulus & Dowa Lawyers -v- The State (Unreported Judgement of the Supreme Court delivered in 1988) SC 545 at page 22.”

15. A year later, this Supreme Court in PNGBC v. Jeff Tole (2002) SC694, per Amet CJ, Sheehan & Kandakasi JJ (as we then were) added:

“The fundamental purpose of the Rules therefore is to enable a proper conduct of trials of disputes. They are not a set of traps designed to prevent an unwary litigant .... That is why there is provision in the Rules (O1.r.7) for a dispensation of a strict compliance of the Rules in the interest of doing justice. They particularly do not and cannot substitute for the substantive law that governs the dispute.”

16. That position of the law was re-affirmed almost 6 years later, by this Court by its decision in Philip Takori v. Simon Yagari (2008) SC905, per Kirriwom J (as he then was), Gavara - Nanu J and Kandakasi J (as I then was), which decision added:

“... there is a large body of case authority such as the decision of the Supreme Court in Public Officers Superannuation Fund Board v. Sailas Imanakuan, which say that, the rules are only a means to an end and not an end in themselves. In other words, the Courts should be looking at doing justice on the merits of the case and not necessarily on the compliance or noncompliance of the rules. However, we are of the view that, that issue can only arise when, a party is properly applying for and does make out a case for a dispensation of the strict compliance of the rules pursuant to O 1 r 7 of the Rules.”

17. Many other decisions of this Court have repeatedly quoted and applied these principles: See for example the decisions in Air Niugini Ltd v. Agnes Puri Unagi (2007) SC901, per Kapi CJ, Jalina & Lay JJ (as they then were); Hilary Singat v. Commissioner of Police (supra) and Niugini Mining Ltd v. Joe Bumbandy (2005) SC804, per Injia DCJ (as he then was), Gavara–Nanu J and Lenalia J (as he then was).
    
18. In the present case, a perusal of the decision, the subject of this appeal, fails to reveal any consideration being given by the learned trial Judge as to the application of the provisions O. 1, rr 7 and 8 of the National Court Rules after having ruled erroneously that the provisions of O 4, r. 49 (8) of the Rules applied. Obviously, the learned trial Judge with respect, failed to give any consideration to the fact that, leave was granted which meant there was an arguable case on the substantive merits of the case, and he needed to exercise caution and care before effectively allowing for a technical knockout of an arguable case. If he did exercise such care and caution, he could have considered this well settled position of the law and he might have arrived at a different decision.
    
19. This leads me to the next part of the issues under consideration, namely, the learned trial Judge allowing a purely technical issue to be raised belatedly at the hearing of a substantive judicial review application. There are two parts to this point. First, the judicial review proceedings being exclusively provided for and governed by Order 16, has no provision for the raising of competency issues. If there is a legitimate basis to question the competency of any judicial review proceeding it must be within Order 16 and not under any other part of the National Court Rules or any other law except as may be provided for within Order 16. The onus was on the sixth respondent therefore to persuade the Court and the Court to require the respondents to demonstrate to the Court’s satisfaction that there was foundation in Order 16 for it to belatedly raise the issue raised by the respondents and succeed. There is nothing in the decision under review that demonstrates that being done.
    
20. Secondly it was necessary for the learned trial Judge to require of the sixth respondent and for that respondent to demonstrate to the satisfaction of the Court that, it was entitled to raise an issue not earlier raised prior to the substantive matter being set down for a hearing. If the issue was raised earlier, the issue could have been dealt with as a preliminary issue or a deliberate decision made to have it included as an issue for consideration and determination at the trial. In making this observation, I am mindful of the fact that competency issues are open for consideration at any stage of a proceeding until final decision or judgment. Under the Supreme Court Rules and the practice and procedure thereunder, objections to competencies are specifically provided for in the rules such as O.7, rr. 15 – 19 in respect of appeals. There is ample authority for the proposition that, parties are precluded from raising as of right any issue of competence except within the provisions of the rules. However, the Court may in its absolute discretion raise issues of competence going fundamentally into the legal and jurisdiction aspects of the court process and not just mere technicalities in cases where the proceedings are correctly before the Court and the Court does have the necessary jurisdiction to deal with the matter: See for example the decisions in Lowa v. Akipe [1991] PNGLR 265; Sir Arnold Amet v. Peter Charles Yama (2010) SC1064; Mountain Catering Ltd v. Frederick Punangi, Secretary, Department of Defence, and 2 Ors (2013) SC1225 and Digicel (PNG) Ltd v. Jim Miringtoro (2019) SC1850.
    
21. In the present case, the record of proceedings does not bear witness to the sixth respondent or indeed any of the respondents seeking leave of the Court and a case being made out for such leave to be granted. Instead, the record demonstrates, the sixth respondent was permitted to raise the issue based on O. 4, r. 49 (8) as of right. The record also shows, no issue was raised as to the Court having the necessary jurisdiction to hear the substantive review application or any of the preconditions such as leave not being sought and obtained or the proceedings amounting to an abuse of process or such important issues like that being raised. Instead, the record shows the process and requirements for an applicant for judicial review to file and serve a motion for the substantive review after a grant of leave for judicial review was not in issue. On the face of the records, it is clear the appellant duly complied with the relevant requirements under O. 16 and particularly r. 5. The issue allowed by the learned trial Judge to be raised belatedly and that which formed part of reasons for his decision was clearly a technical nit-picking argument that did not go seriously into the fundamental legal requirements and the jurisdiction of the National Court to deal with the substantive review after the grant of leave. This is clearly a case of the learned trial judge allowing the general provisions of the National Court Rules to override the specific provisions under Order 16, against the weight of the numerous Supreme and National Court decisions on point and thereby allowing the respondents to gain at the expense of real justice on the substantive merits of the case after the appellant met the requirements of establishing an arguable case at the leave stage. Clearly, the learned trial judge made the rules to be an end in themselves rather than a means to an end on the substantive merits of the case. This requires correction by this Court through this appeal and doing so would enable a determination of the appeal in favour of the appellant.
    
22. However, to be complete, I will now turn to the first part of the remaining issues.
    

Issue (c) - Was there evidence supporting the finding of undue delay and meeting of the relevant legislative requirements?

(1) Undue delay

23. I will deal firstly with the issue of delay and will then address the second part of the issue. Order 16 Rule 4 (2) of the National Court Rules prescribes a four (4) months’ time limit. It is well settled law that, that time limit is not rigid. Upon provision of reasonable explanation by an applicant for judicial review coming outside the 4 months limitation, leave can be granted, and a substantive review application can be permitted. The decisions of this Court for example in The State v. Lohia Sisia [1987] PNGLR 107 and Nakun Pipoi v. Viviso Seravo, Minister for Lands (2008) SC909 are examples of authorities on point.
    
24. The relevant questions in the present case are: (1) did the appellant delay in filing and prosecuting his application and if yes; (2) did the appellant provide a reasonable explanation for the delay? The answer to these questions is in the evidence the parties produced at the trial and most importantly a statement of the relevant facts agreed to by the parties. Before delving into the evidence and or the facts, I note at the outset that only the appellant went into evidence. Also, I note that, the parties agreed as to what the relevant facts were. Hence there was no contest on the relevant facts.
    
25. The statement of agreed facts and issues relevantly stated the facts as follows:
    

“The parties agree on these facts:

1. The land in issue in the proceeding is described as Volume 71 Folio 225 of Portion 1194, Milinch Granville, Fourmil Moresby, NCD being the whole of the land more particularly described in the State Lease (“The State Lease”).
   

The State Lease

2. The State Lease was initially granted to Mr. Robert Wood on 17 March 1982 for a term of eighty-nine (89) years two hundred and forty-nine (249) days expiring in 2071.
   
3. The State Lease was sold and transferred to PNG Amusements Pty Limited on 21 November 1984, who mortgaged it to ANZ Banking Group Ltd on 29 October 1991.
   
4. On 9 September 2003, the mortgage was discharged, and the State Lease was transferred to the Plaintiff.
   
5. At all material times, the Plaintiff’s title on the State Lease has been valid, subsisting and in force.
   

Proposed Subdivision

6. In 2011, Kramer Ausenco (PNG) Limited applied on behalf of the Plaintiff to the NCD physical Planning Board proposing that an area of 2 hectares be subdivided or exercised out of the land then zoned “commercial” out of the “8/9 Mile Local Development Plan” and this “Public Institution” to accommodate a meeting house and ancillary amenities.
   
7. The application was considered and rejected at Meeting No. 11/2011 of the NCD Physical Planning Board which convened on 8 December 2011 on the grounds that the proposal was considered spot zoning.
   

The Plaintiff’s Inspection of the Land

8. On 2 March 2018, the Plaintiff’s officers from the Property Management Division conducted a physical property inspection on the land, subject of the State Lease to ascertain its development status and discovered preliminary works on and around the land, including fencing.
   
9. After some enquiry by the Plaintiff’s Officers, it became known that the trespassers were holding themselves out to be agents, servants, or employees of one Lady Ni Cragnolini.
   

The First Proceeding

10. On 15 April 2018, the Plaintiff commenced proceeding styled OS. No. 248 of 2018 (CC4); the Church of Jesus Christ of Latter-day Saints Inc. v. Lady Ni Cragnolini and Ors (‘First Proceeding’).
    
11. The First Proceeding basically sought various declarations and injunctions against Lady Ni Cragnolini for trespass to the land, subject to the State Lease.
    
12. At no point was it suggested that the Plaintiff was not the true holder of the State Lease, nor that the State Lease was vested in anyone else.
    

The Competing State Lease

13. On or about 26 June 2018, the Plaintiff reviewed an Affidavit in Support of Lady Ni Cragnolini filed on 14 June 2018 in respect of the First Proceeding and came across two annexures in that Affidavit marked as “LNC2” and “LNC3” containing documents purporting to be a Notice of Show Cause addressed to the Plaintiff dated 4 April 2007 and a Notice of Forfeiture addressed to the Plaintiff dated 23 May 2007 respectively (‘Purported Notices’).
    
14. Upon further review of the said Affidavit in Support of Lady Ni Cragnolini, the Plaintiff came across annexure “LNC4” which contains a document purporting to be Notice of Forfeiture of the Land and contained in page 7 of Gazette Notice G82 dated 24 May 2007 (‘Purported Gazette Notice’).
    
15. The Plaintiff also became aware upon reviewing the Affidavit of Lady Ni Cragnolini in respect of the First Proceeding, of a document annexed thereto as LNC 1 purporting to be a State Lease described as Volume 39 Folio 200 comprising a Business (Commercial) Lease which was issued over Portion 1194 Milinch Granville, Fourmil Moresby for a term of ninety-nine (99) years commencing as at/from 13 November 2008 in favour of Lady Ni Cragnolini and belatedly registered on 26 October 2011 (‘New Lease’).
    
16. Upon becoming aware of the Purported Notices, Purported Gazette Notice and New Lease it appeared to no longer be a simple matter of trespass but of conflicting titles, the Plaintiff withdrew the First Proceeding which was no longer appropriate.
    
17. The Plaintiff having not received any such notices to Show Cause or Notice of Forfeiture, nor any notice to surrender its Owners Copy of the State Lease nor any notice of any new title in conflict with theirs, naturally sought to search its title at the Department of Lands and Physical Planning (‘DL&PP’), but from the time of first receiving any suggestion of the existence of any of these events until the present day, has been unable to obtain a search of the State Lease.
    
18. The Plaintiff also conducted its own searches of the Purported Gazette Notice at the Government Printing Office and noted that the official publication of the Gazette Notice G82 dated 24 May 2007 contained only (6) six pages with an official imprint on the last page of the said Gazette Notice.
    

Plaintiff’s Position

19. The Plaintiff has paid all land rents owed to the Papua New Guinea Department of Lands and all rates owed to the National Capital District for Portion 1194 Milinch Granville, Fourmil Moresby current through to 14 August 2018.
    
20. At no time was a Notice of Show Cause served on the Plaintiff and the State Lease validly forfeited.
    
21. During the entire period after discovery of the Purported Notice and Improper Title, to the filing of this Application, the Land Department files relating to State Lease could not be accessed.
    
22. The Plaintiff filed the Court Proceeding on 14 December 2018.
    
23. The Plaintiff was granted leave to apply to judicial review on 12 February 2019.”
    
26. A Statement of agreed and disputed facts is an important part of case management, trial and determination of proceedings. Based on several National and Supreme Court decisions, I noted in my decision in Edward Kae v. Mondo & Ors (2020) N8681 that a statement of agreed and disputed facts serves an important function on the determination of what are the relevant facts in a case. Where the parties agree to the relevant facts those are the relevant facts in their case from which a party may not be at any liberty to depart except with the agreement of the other party or parties: See paragraphs 10 to 21 of the judgment.
    
27. In the present case, on the uncontested facts, and other evidence only adduced by the appellant, it was clearly established before the trial Court that the appellant was not aware of the decisions that were purportedly made at the relevant time of the decisions or soon thereafter. One of the decisions was the purported decision to issue the appellant with a show cause notice and the subsequent issuance purportedly of such a notice to the appellant. The other decision was the purported decision to forfeit the appellant’s interest and title in the relevant State lease. The final decision was to grant the State Lease to the sixth respondent after the purported forfeiture. There was no evidence of any of these decisions being communicated or served on the appellant at any time.
    
28. The first time the appellant became aware of the decisions and purported actions of the first to the fifth respondents was when the servants and agents of the sixth respondent moved onto the land and were undertaking certain activities on it. That came about in March of 2018. Based on that discovery, the appellant filed its first lot of proceedings, under court file reference OS. No. 248 of 2018 (CC4) on 15 April 2018, thinking it was a case of trespass only. That all changed when the sixth respondent filed an affidavit on 14 June 2018 in response to those proceedings. On or about 26 June 2018, the appellant conducted a review of that affidavit. That is when it discovered two annexures marked as “LNC2” and “LNC3” to the said affidavit. These documents contained a purported Notice to Show Cause addressed to the appellant dated 4 April 2007 and a purported Notice of Forfeiture addressed to the appellant dated 23 May 2007 respectively (‘Purported Notices’). The said affidavit also disclosed a purported competing State Lease over the same property granted in favour of the sixth respondent.
    
29. Upon becoming aware of the Purported Notices, the purported Gazette Notice and New Lease, the appellant considered it no longer a simple matter of trespass but of conflicting titles. Accordingly, it withdrew its OS. No. 248 of 2018 (CC4) proceeding. Also, not having received any such notices nor any notice of any new title in conflict with that of itself, the appellant, searched its title at the DL&PP, but from the time of first becoming aware of the existence of a new and competing title up to the date of the trial and this appeal, the appellant has been unable to obtain a search of the State Lease due to the relevant file not being there and or gone missing for good.
    
30. The appellant also conducted a search of the Purported Gazette Notice at the Government Printing Office and noted that the official publication of the Gazette Notice G82 dated 24 May 2007 contained only (6) six pages with an official imprint on the last page of the said Gazette Notice. That clearly revealed the copy of the Gazette produced by Lady Cragnolini was not genuine and was a fake or fraudulent one. The Government Printers Office confirmed that, saying, the forfeiture page was not part of the relevant gazette. Despite summons and Court orders the DL&PP failed to produce a copy of the forfeiture gazettal.
    
31. Eventually, the appellant filed its application for leave for judicial review on 14 December 2018 after exhausting the only other available remedy, namely appeal under s. 142 of the Lands Act. On 12 February 2019, the appellant was granted leave for judicial review by his Honour Gavara-Nanu J. Following that, the substantive review proceeded to a hearing resulting in the decision the subject of this appeal. Several basic errors on the part of the learned trial Judge becomes apparent in the context of the question under consideration.
    
32. Firstly, the issue of delay is usually a factor that is considered up front on the hearing of an application for leave. There is no issue before us that, that did not happen, and the issue of delay was an issue open and yet to be considered at the hearing of the substantive review application. In making that observation I am mindful of the position at law that, matters considered at leave stage can be reconsidered at the hearing of the substantive review application: See NTN v. PTC [1987] PNGLR 70; Hii Yii Ann v. Canisius Kami Karingu (2003) SC718 and Daniel v. Air Niugini Ltd (2017) SC1886.
    
33. The power to reconsider the matters raised at the leave stage does not necessarily give the Court hearing the substantive review application the power to completely ignore what was considered and determined on the relevant point at the leave stage. If the subsequent decision at the substantive hearing is to deviate from a finding and a decision at the leave stage, good basis such as for example certain evidence and hence facts not disclosed or given and or present at the leave stage, are now before the Court on the hearing of the substantive application. This means, good and convincing reason or reasons must be given for any departure from the findings and decision at the leave stage.
    
34. In the present case, there is no mention of the facts as they were presented on the issue of undue delay before the leave Court and what new or additional facts were disclosed at the substantive review stage to cause the learned trial Judge to depart from the findings and decision on leave. The issue of leave was heard and determined by one of our most senior Judges. There is neither any mention nor any indication or suggestion as to how the leave Court dealt with the issue, and how or what made it necessary for the learned trial Judge to revisit the issue of undue delay and find against the appellant. This was at the minimum, required of the learned trial Judge. There is nothing in the learned trial Judge’s reasons for decision meeting that minimum. He thus fell into a serious and clearly identifiable error which must be corrected forthwith.
    
35. Secondly, with the greatest of respect, I am having great difficulty trying to understand the learned trial Judge’s reasons for finding the appellant having unduly delayed going to Court with its judicial review proceeding. Doing the best, I can however, it appears the learned trial Judge reasoned that, the appellant should have used its first proceedings to raise the issue of duplicate title and in so doing show that his title was the genuine one. By not taking such a step, the appellant did not show any urgency and was not genuine. This reasoning was seriously flawed and needs an immediate correction. Judicial review is and was the only process that could be employed by the appellant to get around the purported decisions to forfeit its State Lease and have that granted to the sixth respondent. The first proceeding could neither be converted into a judicial review proceeding nor could it be maintained as they were based on the assumption that the appellants title over the State Lease was intact. Affidavit evidence adduced by the sixth respondent displaced that assumption. Once those purported decisions were revealed an appropriate response had to be an application for leave for judicial review of the purported decisions. That is what the appellant decided to do by withdrawing the first proceeding and issue the second proceeding seeking a judicial review of the purported decisions after duly exhausting the appeal remedy. In the circumstances, the appellant did provide a reasonable explanation for getting to the Court after the expiry of the prescribed 4 months.
    
36. Turning then to meeting the requirements of the Lands Act, I note the learned trial Judge in finding the respondents met all the relevant requirements under the Lands Act, he first reasoned:
    

“What is probable and open on the evidence is that there were proper notices accorded and dispensed in accordance with section 122 of the Lands Act.

“And that is clear because even Lady Ni Cragnolini had them in her possession as a person who came into their possession after their execution in accordance with the law set out above. She no doubt had them to defend that she did not come onto the subject State lease without proper recourse to law section 122 of the land Act to the plaintiff including the gazettal pertaining. Because as she did this would be the material upon which she would show why she was on the subject land state lease against the action that the Plaintiff instituted. And that is clear from the conduct of the Plaintiff who simply withdrew the action he instituted OS 248 of 2018 (CC4) The Church of Jesus Christ of Latter-day Saints Inc. Plaintiff against Lady Ni Cragnolini (supra) without lifting a finger to fight that he was unjustly and unlawfully deprived of his title to his state lease.”

37. This finding or reason was also seriously flawed. None of the respondents adduced any evidence which established in any manner or form a due compliance of the process and procedure under the Lands Act that governs notice to show cause, forfeiture, and grant of State Leases. The provisions of s.122 as to forfeiture, and ss. 68, 69 and 71 of the Lands Act as to grant of a State Lease are clear. They spell out the relevant processes for forfeiture of State Leases and a grant of a State Lease. No evidence was before the learned trial Judge confirming any of these provisions and the processes prescribed under the Lands Act being duly met. Instead, the only evidence and undisputed facts before the learned trial Judge spoke clearly of the due process not being followed. This was revealed amongst others by:
    
    • (a) the purported show cause, forfeiture and grant of the State Lease to sixth respondent were not communicated to the appellant as the registered title holder;
      
    • (b) the appellant met all of the requirements under the Lands Act as a registered title holder to secure and keep its title to the State Lease;
      
    • (c) the relevant file for the State Lease at the DL&PP went missing with no explanation provided by the DL&PP; and
      
    • (d) the purported gazettal notice produced by the sixth respondent in her defence of the first of the appellant’s proceeding was fake and not one produced and officially coming from the Government Printer.
      
38. Thirdly, the learned trial Judge found the appellant was not a witness of the truth. He found and reasoned in this way:
    

“He is not a witness of the truth in the way he was demonstrated set out above. Rather the contrary he is deceitful and wants the Court to believe an assertion that a seasoned core Government Department, Its Minister, Papua New Guinea and Department of Lands and Physical Planning is all a shame and not giving heed to the law governing the Land Act and related laws. Where would the country be if there were rampant and the case, would there be developments as were see them now? Certainly, it leaves a lot to be desired of the conduct of the plaintiff and the case he pleads. As for the conduct of the defendants on the matter Wednesbury principles were given effect to including natural Justice that is why there is no vigour in the way he has sought to bring this matter demonstrated above. He has not fought if that were the case. If it were genuine, it would have ended as in Nambawan Super Ltd v. Kimas [2013] PGNC23; N5062 (27 February 2013). No doubt he was aware of it because of the action that he took but did not resort to.”

39. This reasoning too was seriously flawed and must be corrected. There was no contest on the credibility of any of the witnesses the appellant called given the lack of any contest at the hearing of the substantive review by any of the respondents, let alone the sixth respondent who would have played a more active role in trying to protect the title she purportedly secured for the relevant State Lease. Additionally, it is now a well-known fact that the DL&PP is one of the most corrupt departments in the country. This is evidenced by many cases of forfeiture without notice or fully complying with the requirements for the grant of State Leases to third parties. The instances of purported show cause notices being issued followed by forfeitures of the interest of many innocent title holders of State Leases, titles or interest and grant of State leases to other persons without following the due process under the Lands Act are common occurrences: See for examples of cases on point; Yakananda Business Group Inc v Minister for Lands & Physical Planning (2001) N2159, per Sevua J; Mount Hagen Local Level Government v. Kimas (2012) N6044, per Makail J; North Fly Development Corporation Ltd v. Kimas (2015) N6122, per Makail J; Markham Farming Co Ltd v. Wanga (2019) N8103, per Gavara-Nanu J; Emas Estate Development Pty Ltd v. Mea, Swokin, and The State [1993] PNGLR 215, per Amet Brown Salika JJ (as they then were) and Lae Bottling Industries Ltd v. Lae Rental Homes Ltd (2011) SC1120, per Gavara-Nanu, Davani (as she then was) and Yagi JJ. I am not aware of any abating of such instances, despite these many decisions of the National and Supreme Courts. This calls for much care, caution, and diligence on the part of the Courts before coming to a decision that concerns the kinds of issues raised in these proceeding or others against the DL&PP’s actual or purported decisions and actions. In this case, none of the respondents contended before the trial Court and before this Court with the support of any evidence of the respondents following the due process provided for under the Lands Act. To cap it all, counsel for the first to the fifth respondents, Ms Kulumbu informed the Court of counsel failing to receive the appropriate instructions and evidence from those respondents. Given this fact, it is difficult to understand how and on what basis the learned trial Judge was able to find as he did.
    
40. Fourthly, the learned trial Judge found the appellant failed to establish its case on the balance of probabilities. His Honour reasoned in this way:
    

“For the action, he has failed to demonstrate the required balance beyond preponderance that the defendants have erred in complying with law the Land Act section 122, including section 41 of the Constitution, and Natural Justice. And by order 16 Rule 4 he has failed to bring this cause of action within the time of 4 months because the Judicial review proceeding now is 7 years old after the forfeiture. By Dupuni v Weke [2016] PGSC 43; SC 1525 (19 August 2016) he will not be accorded Judicial review based. He has not made out a case for Judicial Review. He could have also utilized section 142 of the Land Act in accordance with Lae Bottling Industries Ltd v Rental Homes Ltd [2017] PGSC 43; SC1641 (8 September 2017). For all intent and purposes, he has not demonstrated to the full the balance beyond all preponderance that Judicial review lies against the actions of the defendants themselves or through their agents or servants.”

41. As it can be seen from the above, the learned trial Judge’s reasoning is again with respect, seriously flawed which calls for correction. Repeating myself here, the learned trial Judge did not consider the fact that, most of the relevant facts were not in dispute. Similarly, the learned trial Judged did not consider the fact that only the appellant went into evidence with nothing in rebuttal from the respondents. Further, the learned trial Judge did not consider the effect of the undisputed facts, on the issues presented for determination. The case presented by the appellant clearly showed that the purported decisions to issue a show cause notice, forfeiture of its interest and title to the relevant State Lease and subsequently vest the title and interest in the State Lease in favour of the sixth respondent was unreasonable, harsh and oppressive within the meaning of s. 41 of the Constitution. In short, the learned trial Judge’s findings clearly went against the weight of the clear, direct, and uncontested evidence and the relevant facts on point. In so doing with respect, the learned trial Judge went on a tangent of his own and made findings of fact and came to a decision that was not supported by any evidence and or the relevant procedural and substantive law.
    

Issue (d) – Did the learned trial Judge err in ordering costs on an indemnity basis?

42. I now turn to a consideration of the remaining issue of the learned trial judge ordering costs on an indemnity basis.
    
43. I find with respect that, consistent with his flawed reasoning and judgment, the learned trial judge went on to order costs against the appellant on an indemnity basis without the support of any facts and the relevant law on point. The law on awarding of costs to a party is well settled. The learned trial judge correctly cited the decision of Shephard J in Opi vs Telikom (PNG) Ltd (2020) N8290. That decision extensively reviewed decided cases on distinguishing orders of cost on solicitor and own client basis to that of cost on indemnity basis. The most relevant part of the judgment is cited in Dowa J’s, decision and I need not repeat them here.
    
44. The relevant part of the learned trial judge’s decision appears at [13] of his judgment which reads:
    

“He has failed on all fours and will see nothing but dismissal in its entirety this proceeding with Costs on a indemnity basis to follow the event: Opi v Telikom PNG Limited [2020] PGNC 168; N8290 (29 April 2020). And the reasons for so awarding are as set out in the facts above warranting the discretion to award in this manner.”

45. Costs normally follow the event usually on a party/party basis, unless a case is made out against the normal cause following and or the costs to be ordered on a rate other than the usual party/party basis. The decision the learned trial Judge cited discusses and restates the relevant and applicable principles well.
    
46. In this case, the learned trial judge decided to order costs on an indemnity basis. He has given no reason for arriving at that decision. That is the first major flaw in the learned trial judge’s decision. Secondly, the facts pointing to the appellant meeting all the requirements under the Lands Act and went to Court the moment it became aware of something adverse having occurred against its interest and title in the land. On the relevant and uncontested facts as noted above, if anyone should have been ordered to pay costs on an indemnity basis, it should have been the respondents. Thirdly, having cited the relevant case law on point, the learned trial judge was under a duty to give good reason to make his order for cost at the rate he opted for. This he failed to do in any manner or form. Clearly, therefore the trial judge’s decision on costs was erroneously arrived at and must therefore be immediately corrected.
    
47. For these reasons, I would uphold each of the grounds of review and grant the reliefs sought. Costs of course would follow the event on a full indemnity basis for the reasons given.
    

Representation of the State and State Parties

48. Before closing I must address one important point. That concerns the conduct of counsel for the first to the fifth respondents. At the commencement of the hearing of the appeal, counsel for these respondents, Ms. Kulumbu did not inform the Court that although she had sought instructions from these parties for the purpose of the trial and later the appeal, these respondents did not favour her with any instructions. Only during the hearing and after the Court raised the issue of what was her clients’ instructions specifically on the issues of due compliance of the relevant provisions of the Lands Act 1996 as amended (Lands Act), she disclosed her lack of specific instructions.
    
49. What counsel has done here is contrary to the decision of this Court in The State v. Zacchary Gelu & Manorburn Earthmoving Limited (2003) SC716, per Amet CJ, Kapi DCJ, and Los J. There, the Court held the Solicitor General (SG) has no power to act on his or her own. Instead, the SG must act only on the specific instructions of the Attorney General (AG) in all matters where the State is a party, or a matter concerns the State. The Supreme Court reasoned, s.13 of the Attorney General Act 1989 (AG Act):
    

“... indicates the nature and the scope of the functions of SG [Solicitor General]. Its main function is to ‘appear as an advocate for the State in matters before the courts.’ This is a specific and limited function. In exercising this function, SG shall accept instructions from the AG (s 13 (2)).

In practice, where the State is a party in any litigation before the courts, the SG may act as an advocate if instructed to do so by the AG in accordance with s 13 (2) of AG [Attorney General] Act. Where the SG is instructed, he must act in accordance with the instructions of the AG, such as to settle or not to settle a matter.

Alternatively, the AG may in the exercise of his discretion instruct any other lawyer within or outside the country to act for the State (s 7 (i) of the AG Act).

These provisions have to be read together with the relevant provisions of the CBAS [Claims by and Against the State Act] Act. Section 7...

So far as service is concerned, two officers may receive service (a) Departmental Head responsible for justice matters and SG. With the former, if he is also AG by virtue of s 5 of the AG Act, he may give instructions to SG to act (s 13 (2) of AG Act) or give instructions to another lawyer (s 7 (i) AG Act). If the AG is a politician by virtue of s 4 of the AG Act, the Departmental Head will draw the matter to the attention of the AG to exercise his discretion either under s 13 (2) of the AG Act or under s 7 (i) of the AG Act.

If the SG is served with process, he will seek instructions from the AG (s 13 (2) AG Act). He cannot act without the instructions of the AG.”

50. That decision in effect went against my decision in Peter Aigilo v. Sir Mekere Morauta and The Independent State of Papua New Guinea and John Wakon (No 1) (2001) N2103 and this Court’s own decision in Simon Mali & Others v. The State (2002) SC690, Hinchliffe and Sakora JJ (as they then were) and Batari J. The decision of the Supreme Court in Manorburn does not show any consideration of these decisions. In the Peter Aigilo case, I held that the SG was an independent litigation officer for the State. It was independent of the AG who may on occasions can be a politician. The AG could give the SG instructions from time to time but not restricted to act only on the instructions in each case from the AG. That was necessary to avoid political interests which may unduly interfere with litigation which might go against the best interest of the State and hence the people of Papua New Guinea. I had regard to the word ‘primary’ in 13 (1) of the AG Act. In the Simon Mali, this Court came to a similar view. There, the Court said:
    

“...the Attorney-General has no power (or responsibility) over the superintendence, control and direction over all the matters of litigation brought against the State. This power is vested in the Solicitor-General pursuant to s. 13 Attorney-General’s Act, 1989. ...

The decision whether or not a certain litigation should be settled out of court is a professional decision of an advocate involved in that litigation. It certainly is not a decision intended to be made by someone in the exercise of an executive or political power or function. The point is emphasized when the position of an Attorney-General who is both a parliamentarian and a member of the executive government is appreciated. Such an Attorney-General would not have, has not the legislative and professional, capacity to make such a decision.”

51. Later in Hilary Singut v. The State (2008) SC910, per Salika and Kandakasi JJ (as we then were) and Cannings J, the appellant argued for an adoption and application of the decision in Manorburn. The Court found there was some basis for the call for a revisit of the decision in Manorburn. The Court reasoned the judgment in Manorburn appeared not to have addressed in detail several important issues covered by the earlier decisions in the Simon Mali case and my decision in Peter Aigilo and other prior National Court decisions on point. In so doing the Court pointed out the following:
    

“16. First, the decision did not consider the legislative intention behind s.13 of the Attorney-General Act. Secondly, s. 13(2) only says the Solicitor-General ‘shall accept’ instructions from the Attorney-General in the discharge of his ‘primary’ and role as an ‘advocate’ of the State. This provision does not expressly prohibit the Solicitor-General from performing his duties and responsibilities unless instructed by the Attorney-General.

17. The arguments before us confirm the fact that there are two conflicting decisions concerning the powers and function of the Attorney General particularly in relation to appearance and representation of the State in Court proceedings. The decision of the Supreme Court in Simon Mali and the National Court decisions in the Aigilo and Gelu and Manorburn cases acknowledged and endorsed the fact that the Solicitor General is the ‘primary advocate’ or lawyer for the State. However, they differ in relation to the performance of the state duty and responsibility of the Solicitor General. The National Court decisions with the Supreme Court decision in Simon Mali’s case say that the Solicitor General does not need the specific instructions on a case by case basis from the Attorney General having regard to s. 13 (1) and (2) of the Attorney-General Act and in any case, the Solicitor-General is not subject to any control or direction from the Attorney-General in the exercise of his powers and functions, although he is restricted to receive instructions only from the Attorney-General and none other, given the enormity of the Solicitor-Generals duties and responsibilities and we might add the fact that the Solicitor-General is an employee of the State. On the other hand, the Supreme Court decision in Gelu and Manorburn case departed from that accepted position and held that, the Solicitor-General is obliged to seek and receive instructions from the Attorney-General and that he cannot act for the State without the Attorney-General’s instructions.”
    
52. The Court went on to say, “although the issue of whether the decision of the Supreme Court in ... Manorburn is sound is a valid one and must be resolved”, it decided against getting into such an exercise for three reasons:
    

“ ...First, whatever we decided will not resolve the conflict in the decision of the Supreme Court as noted above. Instead, it will only add to the conflict. We consider a five- or seven-member Supreme Court needs to hear the relevant arguments and come to a decision that could help resolve the apparent conflict in an appropriate case later.

19. Secondly, the case before us can be determined without determining the issue of revisiting and if need be correcting the Supreme Court decision in Gelu and Manorburn case. When the present case went before the National Court, the Court determined the issue of whether the Solicitor-General had the Attorney-General’s instructions to file his notice of intention to defend and defence on the evidence and facts before it. Whether the learned trial judge was correct in arriving at his decision can be determined by reference to the facts that were before him and the relevant law on point.
    
20. Thirdly, we consider it appropriate that the Attorney-General and the Solicitor-General should be separately represented and heard before there can be a determination of the soundness or otherwise of the decision of the Supreme Court in the Gelu and Manorburn case.”
    
53. Similarly, this Court in the subsequent case of Polem Enterprise Ltd v. The Attorney General and Ors (2008) SC911, Kirriwom, (as he then was), Cannings & Manuhu JJ acknowledged the conflict in the authorities and left the matter to be resolved by a five-member bench of the Supreme Court in a later case.
    
54. I note, since these decisions, the representation of the State has not improved. On many occasions, there has been hardly anyone appearing for the State. This has and continues to lead to many default judgments and or otherwise delays in an expedited hearing and disposal of cases involving the State. I am not too sure whether this is being substantially contributed to by the AG failing to give instructions promptly or the SG and his officers failing on their respective duties or a mixture of both. Only the SG and his officers know the answer to that question. Continuing to go by the decision of this Court in Manorburn is clearly against the dictates of justice to have a case heard and disposed of promptly on its substantive merits. The kinds of factors I pointed out in my decision in Peter Aigilo’s case and this Court’s decision in the Simon Mali case, are critical. This requires a reconsideration of the decision of this Court in Manorburn. However, the issue was not properly raised before us for this Court to reconsider the soundness of its decision in the Manorburn case. That will happen on another occasion when the issue does come up and the parties are given the opportunity to address the Supreme Court for a considered decision on the issue. Meanwhile, this is a matter squarely within the SG’s powers and functions and that of the AG to take the appropriate steps to have the conflicting decisions resolved,
    
55. For now, the decision of this Court in Manorburn precluded Ms Kulumbu or indeed anyone for and on behalf of the first to the fifth respondents appearing in Court without the specific instructions of the AG. We nevertheless allowed counsel to continue to assist with submissions on the substantive issues presented before us. This cannot and will not be repeated. In future, unless the decision in Manorburn is expressly reversed, the SG or anyone from his office cannot and will not appear as of right. They shall instead do so with evidence of being instructed in each case by the AG. Without such instructions the SG has no right of audience before any Court in purported representation of the State or any State entity.
    
56. POLUME-KIELE J: This is a decision on an appeal from a National Court decision which dismissed the appellant’s (Judicial Review Application – OS (JR) No. 481 of 2018) and granted orders in favour of the sixth respondent including costs on a solicitor/client indemnity basis.
    
57. I adopt the facts as they are set out in the draft decision of Dowa J. which I have had the opportunity to peruse. I respectfully concur with His Honour’s conclusion and wish only to add a few comments.
    

Preliminary Issue – Representation of the State and State Parties

58. In the hearing of the appeal, Ms. Kulumbu did enter an appearance for the first to the fifth respondent. Ms. Kulumbu did not give any indication that she did in fact had received no specific instructions from the first to the fifth respondents to either oppose or defend the National Court proceedings or this Appeal. It later became clear that she had not filed any affidavit material in response to the allegations raised in the National Court proceedings (OS (JR) No. 950 of 2018) and or this Appeal.
    
59. Ms. Kulumbu also failed to file any affidavit material for the purpose of the trial and later the appeal. It was only through the objections raised by the appellant as to Ms Kulumbu’s appearance and the Court’s enquiry that it was apparently clear that the first to the fifth respondents did not favour Ms Kulumbu with any instructions at all in order to defend the proceedings.
    
60. As to the Court’s query to what was Ms Kulumbu’s clients’ instructions specifically on the issues of due compliance of the relevant provisions of the Lands Act 1996 as amended (Lands Act), Ms. Kulumbu disclosed that due to the lack of specific instructions, she was unable to assist the Court.
    
61. However, she did raise the issue of the ostensible authority of the Solicitor General to act for the State in all matters before the Court and thus this has led to some discussion on the issue which I must say, is not new as numerous cases have also dealt with different aspect of the ostensible authority of the Solicitor General to act for the State in all matters before the Courts.
    
62. It is common ground that the Solicitor-General usually has the ostensible authority if not the actual instructions to represent the State in all matters before any of the Courts in Papua New Guinea.
    
63. After all, the Solicitor-General is by law under s.13 (1) of the Attorney Generals Act, the primary advocate or lawyer for the State in all matters in any of the Courts in this country. Going by the submissions of Ms Kulumbu for the first to the fifth respondent, the Solicitor-General acts on behalf of the State, I note that it has always been the case both before and after the decision of the Supreme Court in (The State v. Zacchary Gelu & Manorburn Earthmoving Limited (2003) SC716, per Amet CJ, Kapi DCJ, and Los J) case that, the Solicitor General immediately acts for the State in relation to any proceedings served on him without waiting for the Attorney-General’s instructions. As there is neither any provision in the Attorney Generals Act nor the Claims by and Against the State Act or any other legislation, positively and or expressly prohibiting the Solicitor-General acting on his own for the interest of the State or require him to act only on the specific instructions of the Attorney General: See Hilary Singut v. The State (2008) SC910, per Salika and Kandakasi JJ (as they then were) and Cannings J.
    
64. Instead, s.13 (1) of the Attorney Generals Act vests the Solicitor-General with the primary duties and responsibilities as an advocate for the State and s.13 (2) says in the discharge of his duties the Solicitor-General “shall accept” instructions from the Attorney-General. This provision does not say that the Solicitor-General shall seek instructions from the Attorney General and act only on his instructions. If a prohibition was imposed, it came about following the judgment in Gelu & Manorburn (supra).
    
65. The case before us is a classical demonstration of the kind of delays and conflicts which might arise and the kind of adverse consequences that could follow against the State if the Solicitor-General was required to seek instructions from the Attorney-General, wait for his instructions and in the meantime does nothing on each matter that requires the taking of steps in defence of the State.
    
66. As there is no affidavit evidence deposed to by Ms Kulumbu as to what steps she took in seeking instructions from her clients, that is, the first, second, third and fourth respondents, I am unable to assess the extent of the difficulties experienced by the Office of the Solicitor General to secure instructions in defending the claim or respond to the allegations raised against them.
    
67. Hence, what all these means is that, where a party claims any lack of authority in the Solicitor-General to act for the State, it is incumbent upon that party to establish that fact with appropriate evidence. In any case I note that, the only person that would have the locus standi to raise the issue of lack of authority or instructions is the Attorney-General to the exclusion of all others because it is strictly a matter between the Solicitor-General and the Attorney-General just like a lawyer and his client or a principal and his agent. This issue can only be raised as against the Solicitor-General without affecting any contract or any of the steps taken by the Solicitor-General that involves the rights or interests of third parties. The only exception would be in a case where a third party and the Solicitor-General have deliberately and knowingly facilitated a contract or any steps the Solicitor-General may have taken say through a third party’s fraud, misrepresentation or bribery or such other serious illegal conducts. That would vitiate the contract, or the steps taken by the Solicitor-General, which could form the foundation for an action against both the Solicitor-General and the third party.
    
68. Care should be exercised to ensure that the Attorney General is not raising the issue of lack of authority to cover for the negligence of his own or those of the Solicitor-General or any other State lawyer. In the present case, I have already noted that the appellant did not provide any evidence before the National Court and again before us showing that the Attorney-General instructed another Lawyer and thereby removed the Solicitor-General from his usual and primary duty and role as the advocate or lawyer for the State for which he needs no specific instructions.
    
69. Further and in addition, I am of the view that the appellant has no locus standi to challenge the authority of the Solicitor-General to appear in Court as the primary advocate for the State in this matter. In that, there was no factual basis to question the authority of the Solicitor-General to file and serve his notice of intention to defend and defence (if any had been filed) on behalf of the State and the other respondents: Hilary Singut v State (supra) adopted and applied.
    
70. Having heard the arguments on the law in relation to the ostensible authority of the Solicitor General to act on all matters against the State before the Courts and accepting that there are two conflicting decisions concerning the powers and function of the Attorney General particularly in relation to appearance and representation of the State in Court proceedings, I am of the view that this is a matter for further deliberation on a time and occasion when raised and determined by a 5-member bench: see Polem Enterprise Ltd v. The Attorney General and Ors (2008) SC911, Kirriwom, (as he then was), Cannings & Manuhu JJ.
    
71. For now, the issue before the Court was the lack of details of specific instruction received from the first to the fifth respondents instructing the Solicitor General to defend the proceedings to the exclusion of all others. As to the lack of instructions from the Attorney General to the Solicitor General, it is strictly a matter between the Solicitor-General and the Attorney-General just like a lawyer and his client or a principal and his agent. I leave it there.
    
72. DOWA J: This is an appeal against the whole of the decision of the National Court given 25^th September 2020 in proceedings OS (JR) 950 of 2018, The church of Jesus Christ of Latter-Day Saints Inc -vs- Pepi Kimas & Others whereby the trial judge refused the Appellant’s application for judicial review.
    

Background Facts

73. The Appellant is the registered proprietor of property described as Portion 1194 Milinch Granville, Fourmil Moresby, NCD under State Lease Volume 71, Folio 225 (herein after referred to as “the First State Lease”). It is an agricultural lease containing 7.49 hectares. The Appellant has been the registered owner since September 2003. Between 2003 and 2018, the Appellant occupied the land undisturbed.
    
74. In March 2018, the Appellant noticed unauthorized persons entering and started preliminary works on the land which the Appellant later learnt that they were employees and agents of the sixth Respondent.
    
75. In April 2018, the Appellant commenced proceedings in OS 248 of 2018 the Church of the Latter-Day Saints Inc – vs- Lady Ni Cragnolini seeking various declaratory and injunctive orders against the sixth Respondent and her agents for trespass. In response, the sixth Respondent filed an affidavit, where she attached copies of the following documents:
    
    1. Notice to Show Cause dated 4^th April 2007 addressed to the Appellant.
       
    2. Notice of Forfeiture addressed to the Appellant dated 23^rd May 2007 respectively.
       
    3. Notice of Forfeiture of Land contained in page 7 of the Gazette Notice G82 dated 24 May 2007.
       
    4. State Lease Volume 39 Folio 200 comprising of Business Lease which was issued over Portion 1194, Milinch Granville, Fourmil Moresby for a term of 99 years to commence on 13^th November 2008 in favour of Lady Ni Cragnolini and registered on 26^th October 2011. (Hereinafter referred to as “the new State lease”).
       
76. Upon becoming aware of the Notice to Show Cause, the Forfeiture Notice and the new State lease, the Appellant withdrew the trespass proceeding OS 248 of 2018, as it was no longer a simple matter of trespass. Rather there were conflicting duplicate titles on the same property, and it would not be appropriate to continue the trespass proceedings.
    
77. The Appellant then filed proceedings in OS 778/2018, The Church of Jesus Christ of the Latter-Day Saints Inc -v- Secretary for Lands and others seeking orders under Order 18 Rule 12 and Order 1 Rule 12 of the National Court Rules seeking the Court’s procedural directions to file appropriate proceedings and at the same time seeking an extension of time to file an appeal against the decisions of the First and Second Respondents out of time pursuant to section 142 of the Land Act. The proceedings were dismissed on 20^th November 2018 by his Honour, Gavara-Nanu J who was of the view that the proceeding was an abuse of the process.
    
78. Thereafter, the Appellant filed judicial review proceedings (the subject of this appeal) on 14^th December 2018 seeking review of the Respondent’s decisions to forfeit the Appellant’s State Lease and the grant of the second Lease to the Sixth Respondent.
    

Judicial Review proceedings

79. The Appellant was granted leave to apply for judicial review in February 2019, by His Honour, Gavara-Nanu J. The substantive application for judicial review by Notice of Motion was heard by the trial judge on 3^rd September 2020.
    
80. The relevant part of the substantive Notice of Motion is set out below:
    

“NOTICE OF MOTION

Take notice that pursuant to the leave of the Honourable Justice Les Gavara-Nanu given on 12^th February 2019, at the National Court of Justice, Waigani, move the Court for:

2. An order in the nature of certiorari to bring into this Honourable court and quash the following decisions of the Defendants:
   
   100. A decision by the First Defendant as delegate of the Second Defendant’s predecessor Minister for Lands on or about 23^rd May 2007 and purportedly published in Gazette G82 dated 24 May 2007 to forfeit the Plaintiff’s State Lease Volume 71 Folio 225 (the Plaintiff’s State Lease) of Portion 1194, Milinch Granville, Fourmil Moresby, NCDE being the whole of the land more particularly described in the State Lease (the land).
        
   4. A decision by the Second Defendant on or about 26 October 2011 (or some other date) to grant a State Lease Volume 33 Folio 200 (the New State Lease) of the Land to Lady Ni Cragnolini.....”
      
81. On 20^th September 2020, the trial judge delivered his decision, dismissing the application for judicial review and awarded cost against the Appellant on indemnity basis.
    
82. The main reasons for decision in summary are:
    
    1. the substantive Notice of Motion was incompetent for failing to meet the requirement under Order 4 Rule 49(8) of the National Court Rules.
    2. there was undue delay in making the judicial review application.
    100. there was compliance of the Land Act in the forfeiture of the appellant’s State Lease and the grant of the new lease to the sixth Respondent.
         

Grounds of Appeal

83. The Appellant appeals the whole of the decision on fifteen (15) grounds which are categorized into three parts:
    
    1. Errors on competency of the substantive Notice of Motion.
    2. Errors on delay conclusions.
    100. Errors on findings as to forfeiture of the appellant’s title and the issuance of the new title.
         

A. Errors of competency of the Substantive Notice of Motion

Ground 4(a)

“a. His Honour erred in mixed fact and law in holding that the Appellant’s substantive notice of motion filed pursuant to order 16 Rule 5(1) National Court Rules was incompetent due to want of form by failing to comply with Order 4 Rule 49(8) National Court Rules in that it did not contain a concise reference to the jurisdiction of the Court to grant the orders it seeks and should be struck out, because:

1. The requirement under Order 4 Rule 49(8) National Court Rules applies to motions for interlocutory relief as adopted by order 16 Rule 13(13)(1) National Court Rules and does not apply to a substantive notice of motion filed pursuant to Order 16 rule 5(1) National Court Rules.
   
2. The substantive notice of motion as in proper form and adequately set out the decisions sought to be reviewed and the reliefs sought.
   
3. Even if Order 4 Rule 49(8) National Court Rules applied to the substantive notice of motion, striking out the motion is discretionary, and the Court can still hear the application for judicial review pursuant to the substantive notice of motion.
   
4. The purpose of the requirement under Order 4 Rule 49(8) National Court Rules to cite the jurisdictional basis of the court is to make the other party aware of the legal basis for the application and in this case the other parties were fully aware of the legal basis for the judicial review application as set out in the substantive notice of motion and supported by the statement filed pursuant to Order 16 Rule (3)(2)(a) National Court Rules.
   
5. The argument about the lack of form and incompetence of the substantive notice of motion was raised belatedly by the 1^st to 5^th Respondent’s lawyer at the hearing of the judicial review application and a dismissal on this basis is unjust and unfairly prejudicial to the Appellant.”
   

84. At paragraphs 2-6 of his judgment, the trial judge in upholding the submissions of counsel for the Respondents found that the substantive Notice of Motion was incompetent as it did not plead the concise reference to the jurisdiction of the Court in compliance with Order 4 Rule 49(8) of the National Court Rules (Motions Amendment Rules) 2005.
    
85. Counsel for the Appellant submits extensively in terms of the ground of appeal that the primary judge fell in error in his findings. The Appellants submissions are exhaustive and helpful.
    
86. In response, counsel for the First to the Fifth Respondents maintains that the substantive Notice of Motion was incompetent as it did not cite the concise reference to the jurisdiction of the National Court and thus, the trial judge did not commit any error in dismissing the proceedings in the exercise of his discretion.
    
87. Judicial Review proceedings involve the review of quasi – judicial and administrative decisions under statute. Order 16 of the National Court Rules sets out the procedure and process of bringing such applications. Judicial Review proceedings are commenced by an Originating Summons seeking leave to apply for judicial review. Amongst other documents, the Originating Summons is supported by a Statement filed under Rule 3(2) and an Affidavit verifying the Statement. The Statement contains the pleadings. It is mandatory that the Statement should plead concisely the following facts:
    
    1. the name and description of the applicant,
    2. the description of the decision made the subject of the review,
    3. the particulars of the decision-maker,
    4. the statutory provision under which the decision is made or state the provisions alleged to have been breached,
    5. a clear summary of the relevant facts,
    6. the nature of relief sought, and the grounds relied on.
       
88. After leave is granted, an application for judicial review shall be made by Notice of Motion to the Court, under Rule 5(1) of the National Court Rules and served on all interested parties. The substantive Notice of Motion shall contain precisely the administrative decisions sought to be reviewed. The Notice of Motion and Statement under Rule 3 (2) are critical documents that form the basis of judicial review proceeding and are to be read together. In most cases, Affidavits filed by an applicant becomes part of the documentation as well.
    
89. The law and procedure on judicial review under Order 16 is settled as described above. Refer also to the cases, Peter Makeng v Timbers (PNG) Limited (2008) N3117, Alex Timothy v Hon Francis Marus (2014) SC1403 and Martin Kenehe v Allan Jogioba (2008) N4025.
    
90. In Timothy v Marus, the Court said this at paragraphs 22-23 of the judgment:
    

“22. Additionally, Order 16 does contain its own provisions for summary disposal of an application for leave for review or the substantive application for judicial review for reasons of want of prosecution, want of competence or for any other reason. The Court may summarily dispose of a proceeding on application by a party, of the Court's own motion or on referral by the Registrar: Order 16 Rule 13 (2). The application must be made by Notice of Motion: Order 16 Rule 13 (1). Clearly, there is no room for a party to invoke Order 4 Rule 36 or any other similar provision found elsewhere in the National Court Rules.

In the case before us, leave for judicial review had been granted, meaning the substantive application for judicial review was alive, active and on foot. The substantive proceeding was then dismissed for want of prosecution under Order 4 Rule 36 when the trial Judge should have had recourse to the Order 16 process under Order 16 Rule 13 of the NCR. For the reasons given, we are satisfied that the trial judge erred in accepting the Notice of Motion filed and moved under Order 4 Rule 36 which had no application to the judicial review proceedings before him. The error committed by the trial judge goes to a breach of the fundamental requirement of the rules of court such that this breach resulted in a substantial miscarriage of justice.”

91. In the present case, I have considered the Notice of Motion and the Statement filed in support. The substantive Notice of Motion was filed immediately after leave was granted. The Notice of Motion pleads precisely the two administrative decisions it seeks to be reviewed and quashed. It is consistent and complies with the minimum requirement of Order 16 Rule 5(1) of the National Court Rules. It is not a Notice of Motion for an interlocutory application as provided for by Order 16 Rule 13(13)(1) of the National Court Rules. Neither is it a Motion under any other Rules where Order 4 Rule 49 (8) applies. In my view, Order 4 Rule 49(8) of the National Court Rules does not apply to a substantive Notice of Motion filed pursuant to Order 16 Rule 5(1) of the National Court Rules.
    
92. I find, with respect, the trial judge fell in error when he held that the substantive Notice of Motion was incompetent for failing to comply with Order 4 Rule 49(8) of the National Court Rules.
    
93. Even if the requirement under Order 4 Rule 49(8) of the National Court Rules were to apply to the substantive Notice of Motion, striking out the motion is discretionary, and the Court could still hear the judicial review based on the substantive Notice of Motion. His Honour could have dispensed with the requirement pursuant to Order 16 Rule 13(14) which provide that a judge may dispense with the requirements of these rules in an appropriate case. The primary judge could still use his discretion to allow the review to do justice where the substantive merits of the case warrants.
    
94. There is a plethora of authority which settled the law that the Rules of Court are not an end in them but a means to an end in all matters going before the Courts. It is a means to achieving a just resolution of the dispute between the parties. The rules are to be interpreted and applied with flexibility to do substantial justice. Refer: Niugini Mining -v- Bumbandy (2005) SC N0804, Summit Development Ltd v Byron Chan (2016) N6390 and Albert Schram v Jean Kekedo (2018) N7291.
    
95. In the present case, I find, with respect, the trial judge failed to exercise his discretion judicially to do justice in the circumstances, especially where the Appellant raised serious arguments on the merits of the application, questioning the administrative decisions of the First and Second Respondents.
    
96. The purpose of the requirement under Order 8 rule 49(8) of the National Court Rules to cite the jurisdictional basis of the Court is to make the other party and the Court aware of the legal basis of the application. This is more applicable in interlocutory motions. The present case was a judicial review proceeding, and the Respondents and the Court were fully aware of the legal basis which was set out in both the Notice of Motion and the Statement filed under Order 16 Rule 3(2). The absence of citing the concise reference to the jurisdiction of the Court to grant the orders it sought did not in any way prejudice the Respondents.
    
97. Finally, I note the competency issues were allowed to be raised belatedly by counsel for the 1^st -5^th Respondents at the time of hearing, despite objections by counsel for the Appellant. At paragraph 4 of the judgment, his Honour said:
    

“4. And the objection and discontentment raised by the State defendants cannot be swept aside because that is fundamental to any institution of originating process in court. Rightly it is a basis in law and the rules to strike the proceedings out for noncompliance because the Supreme Court made it very clear in, Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] PGSC 8; SC694 (27 September 2002) that reliance on taking issue on pleadings not raised before the National Court was not open to an appellant who did not raise the same there and then. Here the State in raising is proper basis in law and the rules on the balance for dismissal for noncompliance of Form by Order 4 Rule 49 (8).”

98. With respect, the trial judge did not properly address the objections raised by the counsel for the Appellant in relation to the raising of the issue of competency belatedly by counsel for the Respondents as it was prejudicial to the Appellant.
    
99. For these reasons, I uphold the appeal ground 4(a) of the Appeal.
    

Ground 4(b)

“b. His honour erred in law in testing the substantive notice of motion as a pleading when it is not a pleading document and erred in his conclusion of law that because the notice of motion failed as a pleading there is proper basis for the dismissal of the proceedings for non-compliance of form pursuant to order 4 Rule 49(8) National Court Rules.”

100. The Appellant submits that the trial judge made an error of law in testing the substantive Notice of Motion as a pleading.
     
101. At paragraphs 3-4 of his judgment, the trial judge said:
     

“3. Because it must state that it is moved pursuant to for example section 5 of the Claims by and Against the State Act. And then the order and rules upon which the court is empowered to deal with the matter pleaded. In its form the substantive Notice of Motion of the plaintiff at page 104 of the Review Book filed 27^th of August 2019 is not within and adheres to the rules. The effect open given is that it maybe struck out as being incompetent and not in form. Because it is primarily essential as the pleadings drive the cause of the action, “The object of pleadings is to enable the parties to fully disclose in fairness the basis of their claim or a defence with particulars to avoid delay, trials by ambush, evasion and or attrition. They also enable the opposing party to know precisely the claim he or she is to meet and if need be, enable an out of Court settlement or a payment into Court. At the same time, pleadings enable the Court to know exactly what are the issues between the parties and what it is required to hear and determine”: National Provident Fund Board of Trustees v Maladina [2003] PGNC 16; N2486 (5 December 2003).

4. And the objection and discontentment raised by the State defendants cannot be swept aside because that is fundamental to any institution of originating process in court. Rightly it is a basis in law and the rules to strike the proceedings out for noncompliance because the Supreme Court made it very clear in, Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] PGSC 8; SC694 (27 September 2002) that reliance on taking issue on pleadings not raised before the National Court was not open to an appellant who did not raise the same there and then. Here the State in raising is proper basis in law and the rules on the balance for dismissal for noncompliance of Form by Order 4 Rule 49 (8).”
   
102. The procedure and process involved in judicial review application has been discussed at paragraph 95-99 of my judgment. It is reiterated that a substantive Notice of Motion filed pursuant to Order 16 Rule 5(1) of the National Court Rules is not a pleading perse. The pleadings in a judicial review proceeding are contained in the Statement filed pursuant to Order 16 Rule 3(2). The Statement is equivalent to a Statement of Claim in a Writ of Summons. The relevant facts to be pleaded in a judicial review proceeding are expounded in the cases, Peter Makeng (supra)and Martin Kenehe (supra).
     
103. In Peter Makeng, the Court said this at paragraph 38 of the judgment:
     

“38. The Statement filed under r 3 (3) should plead, amongst other matters required to be pleaded, the following:

(1) a concise description of the decision made or required to be made, the subject of the review including particulars of the decision-maker, the statutory provision under which the decision was made or required to be made but failed to make; and the date of the decision;

(2) a succinct summary of the relevant factual circumstances;

(3) an accurate description of the relief sought; and

(4) the precise grounds on which the relief is sought.

(5) An affidavit verifying the facts relied upon must also be filed.”

104. In the present case, His Honour appears to have tested the substantive Notice of Motion as pleading without considering same in conjunction with the Statement filed under Rule 3(2). The Statement by the Appellant is detailed and exhaustive. It was supported by an affidavit of Denny Opapo Afualo filed on behalf of the Appellant. It accurately describes the decisions under review. It contains the relevant facts giving rise to the grounds for review. It sets out the reliefs and the grounds upon which the reliefs are sought. In testing the substantive Notice of Motion as a pleading, without any reference to and consideration of or in conjunction with the Statement, the trial judge fell in error and caused a miscarriage of justice. I will therefore uphold Ground 4(b) of the appeal.
     

Ground C

“c. His Honour erred in law by applying the principles relevant at the application for leave to apply for judicial review stage and failing to consider and be guided by the relevant principle and court’s purpose in substantive judicial review applications which is to examine the decision-making process for errors of law, breach of natural justice, unreasonableness and abuse of power.”

105. This ground of appeal is general and is considered and absorbed into the other grounds in this appeal.
     

Part B Errors on Delay Conclusions

Grounds (d) & (e)

“(d) His Honour erred in mixed fact and law in considering the issue of delay and finding that there was delay and no urgency shown by the Appellant in bringing the judicial review action when the undisputed affidavit evidence filed by the Appellant explained the delay and showed that the Appellant urgently and diligently took appropriate steps to challenge the decisions subject of the judicial review upon becoming aware of them on, or about, 26 June 2018.

(e) His honour erred in law in dismissing the judicial review application since it was not filed within 4 months of the purported decisions being made because the 4 months time period is a guide and not a strict requirement, and while it is imposed to ensure that judicial review is not detrimental to good administration it should not operate to protect bad administrative decisions where laws have been breached from judicial review.”

106. I intend to deal with the two grounds together. The trial judge held that there was a delay of seven (7) years and no urgency shown by Appellant in bringing the judicial review action, within the four (4) months as prescribed by Order 16 Rule 4(2) of the National Court Rules.
     
107. The Appellant submits that the trial judge erred in the exercise of his discretion when there was undisputed affidavit evidence presented by the Appellant which explained the delay and showed that the Appellant took urgent and appropriate steps to challenge the decisions the subject of the judicial review.
     
108. Counsel for the first to the fifth Respondents submitted that the trial judge made no error in his decision. It was submitted that although there was an explanation for the delay by the Appellant, there was an undue delay for a period of 12 years since the forfeiture Notices were issued, and the Appellant demonstrated no urgency when it first became aware of the forfeiture and issuance of the new State lease.
     
109. Order 16 Rule 4 (2) of the National Court Rules prescribe four (4) months as the relevant period within which to file judicial review proceedings from the date of decision. The law is now settled that the four (4) months period is not mandatory. The Court has a discretion to consider applications for judicial review which are brought after the four (4) months, provided there is a reasonable explanation for the delay and in the interest of justice. Refer: Avia Aihi v The State (No.2) (1982) PNGLR 44 and Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120.
     
110. The Appellant relied on several Affidavits including that of Denny Opapo Afuolo, Jepheth Illave, Mathew Adadikam and Moha Opa at the hearing of the substantive application for judicial review. The Respondents did not file any Affidavit in response. The sum of the affidavit evidence filed by the Appellant is summarized in paragraphs 2-9 of the judgment. The undisputed evidence shows that when the Appellant first became aware of the decisions of the first and second Respondents in June 2018, it took immediate steps to challenge the decisions.
     
111. In my view, the Appellant has provided more than sufficient evidence which explained the delay in filing the judicial review application. The issue of delay is a relevant consideration at the application for leave stage. In this case, it appears, his Honour Gavara-Nanu J, considered the issue of delay and was satisfied with the explanation provided by the Appellant when he granted leave. Whilst it was open to consider the issue of delay at the substantive review application in determining the relief sought, the trial judge, nevertheless, fell in error in the exercise of his discretion when he failed to consider the undisputed evidence of the appellant explaining the delay. There was no contrary evidence or circumstance that would show that the granting of the relief sought by the appellant would likely to cause substantial hardship or prejudice the rights of any person or would be detrimental to good administration. On the other hand, the refusal to grant the relief sought by the appellant caused grave injustice to the Appellant.
     
112. I will therefore uphold grounds of appeal (d) and (e).
     

Earlier Proceedings, Grounds 4(f), (g) and (h)

Ground 4(f)

“f. His Honour erred in mixed fact and law in holding that the Appellant should have challenged the purported forfeiture of its state lease and grant of the new state lease to the Sixth Respondent in proceedings OS No 248 of 2018: The Church of Jesus Christ Day Saints Inc. v Lady Nicragoli & Ors which was an ordinary trespass action against the Sixth Respondent filed before the Appellant became aware of the decisions after which judicial review was the appropriate process to challenge these purported administrative decisions.”

113. The trial judge held that the Appellant should have challenged the forfeiture of its State Lease and the grant of the new Lease to the sixth Respondent in proceedings OS 248 of 2018, instead of withdrawing the said proceedings which amounted to undue delay.
     
114. The Appellant submitted, that the proceedings in OS 248 of 2018 was for an ordinary trespass action filed against the Sixth Respondent, before it (the Appellant) became aware of the administrative decisions of the first and second Respondents. The trespass proceeding was therefore withdrawn to file judicial review proceedings to challenge the administrative decisions of the First and Second Respondents.
     
115. I am of the view that the Appellant’s decision to withdraw the proceedings in OS 248 of 2018 was appropriate. The cause of action and reliefs sought, and procedure used in an ordinary prerogative writ to that of the judicial review proceedings are not the same. They are quite different. In the former, the Appellant sought injunctive orders for trespass, whereas in the judicial review proceeding, the Appellant sought to quash the administrative decisions of the First and Second Respondents. The trial judge, with respect, failed to appreciate the different processes involved. I will uphold this ground of appeal.
     

Ground 4(g)

“g. His honour erred in mixed fact and law in finding that the Appellant in instituting proceedings OS No. 778 of 2018: The Church of Jesus Christ of Latter-Day Saints Inc. Tiri Wanga & Ors, which inter alia sought an extension of time to appeal the forfeiture of its state lease pursuant to section 142 of the Land Act to exhaust the Appellant’s administrative remedies before seeking judicial review, demonstrated that the Appellant was not genuinely aggrieved and showed no real urgency in regaining its title when that was a proper and sensible step taken by the Appellant.”

116. The trial judge held that the Appellant’s institution of proceedings in OS 778 of 2018 seeking an extension of time to appeal the forfeiture of its state lease pursuant to section 142 of the Land Act, before seeking judicial review, demonstrated that the Appellant was not genuinely concerned about regaining its title, and thereby caused a delay.
     
117. Counsel for the Appellant submitted that, the steps taken by the Appellant seeking extension of time to appeal under section 142 of the Land Act was appropriate to exhaust the administrative remedies available, before seeking judicial review.
     
118. A consideration of section 142 of the Land Act is necessary in determining this ground of appeal. Section 142 reads:
     

“APPEAL TO NATIONAL COURT.

(1) An interested person may appeal to the National Court on–

(a) a re-appraisal of imposition of rent, or a variation or imposition of royalty, under Section 100(5); or

(b) the forfeiture of a lease.

(2) An appeal under Subsection (1) shall be made within 28 days after the matter complained of, or within such further time as the National Court for any special reason allows.

(3) Where an appeal is made under Subsection (1), the matter complained of has no effect until–

(a) the National Court has decided the appeal; or

(b) where no further appeal is made to the Supreme Court–the period prescribed for making an appeal has expired; or

(c) where a further appeal is made to the Supreme Court–the Supreme Court has decided the appeal,

and, subject to Subsection (4), a lessee may in the meantime continue lawfully to occupy the land the subject of the appeal and to exercise his rights, and shall fulfil his obligations, under the lease.

(4) When an appeal is made under Subsection (1)(a) the decision of the National Court or of the Supreme Court shall be deemed to operate as from the date of the matter complained of.”

119. Section 142 of the Land Act provides that an interested person may appeal to the National Court on the forfeiture of a lease within 28 days after the decision. It is settled law that an applicant in a judicial review proceeding must exhaust all administrative avenues and other available remedies before making the application. Refer; NTN Pty Ltd v PTC (1987) PNGLR 70, Kekedo v Burns Philp (1988-89) PNGLR122 and Dupnai v Weke (2016) PGSC43, SC1525.
     
120. In Kekedo v Burns Philp, Amet J (as he then was) said this:
     

“One of the fundamental rules in relation to judicial review is the question as to whether the applicant for judicial review has exhausted other remedies provided by law, eg, statutory provision for appeal. Generally, it is the rule that the judicial review jurisdiction will not be exercised where other remedies available have not been used: see, eg, R v Epping & Harlow General Commissioners; Ex parte Goldstraw [1983] 3 All ER 257 at 262 per Sir John Donaldson MR (with Purchas LJ concurring). This rule is subject to cases where facts and circumstances show that judicial review is more appropriate or convenient to do justice.”

121. The evidence shows that is exactly what the Appellant did. The Appellant sought procedural directions under the National Court Rules and for an extension of time to appeal the decisions of the first and second Respondents pursuant to section 142 of the Land Act. The application was refused. Having exhausted the appeal process provided for by section 142, the Appellant lost no time in filing the judicial review proceedings. Contrary to the trial judge’s views, I find the Appellant was seriously concerned about the forfeiture of its land Title and took immediate remedial steps to regain same.
     
122. I will therefore uphold ground (g) of the Appeal.
     

Ground (h)

“(h) His Honour erred in law or mixed fact and law in treating the voluntary withdrawal by the Appellant of National Court proceedings OS No. 248 of 2018 and its replacement by OS 778 of 2018 as prejudicial to the Appellant’s judicial review application when these proceedings were not prejudicial, created no issue estoppel or res judicata and were sensible and normal responses to different legal positions revealed by the unexpected information that the Appellant’s title had apparently been forfeited and another title issued.”

123. As I have found in grounds (f) and (g) above, the three proceedings, OS No. 248 of 2018, (trespass), OS No. 778 of 2018 (section 142 of the Lands Act) and OS JR 950 of 2018 (judicial review) are distinct and differ from each other. The causes of action, issues raised, and reliefs sought in each of those proceedings are not the same. Therefore, the trial judge fell in error in treating the withdrawal of the proceedings in OS 248 of 2018, and its replacement by proceedings in OS 788 of 2018 as prejudicial to the Appellant’s subsequent judicial review application in OS(JR) 950 of 2018. The three proceedings were appropriately filed to deal with different legal issues based on legally recognized causes of action known to law.
     
124. I will therefore uphold this ground of appeal for reasons earlier given.
     

Findings as to Forfeiture in 2007 and issuance of New Title in 2008

Grounds (i & j)

“

1. His Honour erred in mixed fact and law in concluding that legally effective notices were issued in accordance with section 122 of the Land Act when:
   
   1. there was no evidence before the Court that the purported Notice to Show Cause had been served on the Appellant in accordance with the strict and mandatory requirement of section 122(2) of the Land Act.
      
   2. there was no evidence before the Court that the purported Notice of Forfeiture had been served on the Appellant in accordance with the strict and mandatory requirement of section 122(4) of the Land Act.
      
   3. Undisputed evidence before the Court proved that the purported Notice of Forfeiture relied on by the Respondents was a fake, hence there was no Notice of Forfeiture published in accordance with the strict and mandatory requirement of section 122(1) of the Land Act.
      

10. His Honour erred in mixed fact and law in failing to address the pleading in paragraph 4(1)(a) of the Statement pursuant to Order 16 Rule 3(2)(a) of the National Court Rules, that there were errors of law of the face of the record of the purported decision to forfeit the Appellant’s State Lease in breach of the strict and mandatory requirements of the Land Act, in particular:
    
    1. Section 122(1) of the Land Act in that no Notice of Forfeiture was published in the National Gazette. The publication of a Notice of Forfeiture in the National Gazette is the formal act of forfeiture and this never happened.
       
    2. Section 122(2)(a) of the Land Act in that no Notice to Show Cause was served on the Appellant.
       
    3. Section 122(3) of the Land Act in that the Appellant had not failed to comply with any Notice to Show Cause under Section 122(2)(a) served on it.
       
    4. Section 122(1) of the Land Act in that no proper grounds for forfeiture existed, and in particular at the material date the Appellant was not in lawful or material breach of the covenants or terms of the State Lease.”
       

125. I will deal with the two grounds together. These grounds relate to the merits of the review application concerning the application of section 122 of the Land Act.
     
126. Section 122 of the Land Act reads:
     

“FORFEITURE OF STATE LEASE.

(1) The Minister may, by notice in the National Gazette, forfeit a State lease–

(a) if rent on the lease remains due and unpaid for a period of six months; or

(b) if fees are not paid in accordance with this Act; or

(c) if the amount payable in respect of improvements is not paid in accordance with this Act; or

(d) if–

(i) a covenant or condition of the lease; or

(ii) a provision of this Act relating to the lease; or

(iii) a requirement of a notice under Section 91 relating to the lease,

is not complied with; or

(e) if the granting of the lease has been obtained, in the opinion of the Minister, wholly or partly as a result of statements that were, to the knowledge of the lessee, false or misleading.

(2) Before forfeiting a State lease under Subsection (1), the Minister–

(a) shall serve notice on the lessee calling on him to show cause, within a period specified in the notice, why the lease should not be forfeited on the ground or grounds specified in the notice; and

(b) may, whether or not cause has been shown in accordance with a notice under Paragraph (a), serve on the lessee a notice requiring him, within a period specified in the notice, to comply with the covenants or conditions of the lease or the provisions of this Act.

(3) The Minister shall not forfeit a lease under this Section unless–

(a) the lessee has failed to comply with a notice under Subsection (2)(a) or (b); or

(b) the lessee has failed to show good cause why the lease should not be forfeited.

(4) Copies of a notice of forfeiture and a notice under Subsection (2)(a) or (b) shall be served on all persons who, to the knowledge of the Departmental Head, have or claim to have a right, title, estate or interest in, to or in relation to the land, or such of them as can with reasonable diligence be ascertained and found.

(5) No acceptance of rent by the State waives a right to forfeit a lease under this Act.

(6) For the purposes of this Section the grant of an application for a State lease shall be deemed to be the grant of the lease.”

127. The trial judge concluded that all relevant notices and gazettal publications prescribed by section 122 of the Land Act were duly issued and complied with prior to the forfeiture of the Appellant’s State Lease.
     
128. The relevant part of His Honour’s decision is at paragraphs 11-12 of the judgment, which read:
     

“11. What is probable and open on the evidence is that there were proper notices accorded and dispensed in accordance with section 122 of the Lands Act which I set out as follows; PART XV. – FORFEITURE OF STATE LEASE AND FINES.

1. And that is clear because even Lady Ni Cragnolini had them in her possession as a person who came into their possession after their execution in accordance with the law set out above. She no doubt had them to defend that she did not come onto the subject State Lease without proper recourse to law section 122 of the Land Act to the plaintiff including the gazettal pertaining. Because as she did this would be the material upon which she would show why She was on the subject land against the action that the Plaintiff instituted. And that is clear from the conduct of the Plaintiff who simply withdrew the action he instituted OS 248 of 2018 (CC4) The Church of Jesus Christ of Latter-day Saints Inc. Plaintiff against Lady Ni Cragnolini (supra) without lifting a finger to fight that he was unjustly and unlawfully derailed of his title to his State Lease. This conduct is reflected although out in the way that he resorts to in the various litigation set out above. He is not a witness of the truth in the way he has demonstrated as set out above. Rather the contrary he is deceitful and wants the Court to believe an assertion that a seasoned core Government Department, its Minister, Secretary, and officers managing all land of the Independent State of Papua New Guinea the Department of Lands and Physical Planning is all a shame and not giving heed to the law governing the Land Act and related laws. Where would the country be if these were rampant and the case, would there be developments as we see them now? Certainly, it leaves a lot to be desired of the conduct of the plaintiff and the case he pleads. As for the conduct of the defendants on the matter Wednesbury principles were given effect to including natural justice that is why there is no vigour in the way he has sought to bring this matter as demonstrated above. He has not fought if that were the case. If it were genuine it would have ended as in Nambawan Super Ltd v Kimas [2013]PGNC 23; N5062 (27 February 2013). No doubt he was aware of it because of the action that he took but did not resort to.”
   
129. Counsel for the Appellant made extensive submissions that there was no evidence to support his Honour’s conclusion that the mandatory requirements of section 122 of the Land Act were complied with by the First and the Second Respondents in forfeiting the Appellant’s title. Counsel for the First to the Fifth Respondents made no submissions on these two grounds, (i) and (j).
     
130. The obligations set by section 122 of the Land Act are mandatory and requires strict adherence by the Respondents who administer the Land Act. The summary of the undisputed evidence and submissions made before the National Court show that:
     

(1) The Appellant was not served Notice to Show Cause in accordance with section 122(2) of the Land Act.

(2) The Appellant was not served a Notice of Forfeiture in accordance with section 122(4) of the Land Act.

(3) There was no publication of the Forfeiture Notice in the Government Gazettal Notice, in accordance with section 122(1) of the Land Act.

131. It appears the trial judge relied on several documents, purporting to be Notice to Show Cause dated 4^th April 2007, Notice of Forfeiture dated 24^th May 2007 and Gazettal Notice 982 dated 24^th May 2007. These documents were annexed to an affidavit in support by the 6^th Respondent in proceedings styled OS No. 248 of 2018. They were reproduced by the Appellant in the judicial review proceeding. The existence of these documents was denied by the Appellant. A search conducted by the Appellant to verify the existence of these notices at the Lands Department was unsuccessful as the relevant file had gone missing. The Respondents on their part did not produce any evidence to prove that the Appellant has been served with the relevant Notices.
     
132. On the other hand, the Appellant produced evidence disputing the Notice of Forfeiture of the Appellant’s State Lease by the First Respondent published in the National Gazette. The undisputed evidence before the National Court showed the document relied on by the sixth Respondents purporting to be a Gazette Notice of Forfeiture of the Land contained at page 7 of the National Gazette G82 dated 24^th May 2007 was not verified. The Appellant after conducting a search for the Gazette Notice at the office of Government printer showed that the official publication of the Gazette Notice G82 dated 24^th May 2007 contained only 6 pages. The official Gazette Notice did not have the Forfeiture Notice of the Appellant’s Land. The Respondents did not bring any evidence to rebut the evidence of the Appellant. The first to the fifth Respondents are the only persons who would have the necessary evidence as they have excess to the relevant Lands file. In the absence of rebuttal evidence, the only credible evidence was that of the Appellant. This being the case, it is clear, there has been no publication of forfeiture of the Appellant’s title, and the Appellant’s State Lease remained valid and subsisting at all material times.
     
133. Despite the pleadings and undisputed evidence showing that section 122 of the Land Act was not complied with, the trial judge fell in error by drawing conclusions based on an erroneous presumption, that the first to the fifth Respondents were compliant with the requirements of section 122 of the Lands Act in giving the requisite notices. It is common knowledge from public complaints and the many cases that have come before this and the National Courts, that the Respondents with respect, are not above reproach. I find, with respect, that the trial judge fell in error. I will therefore uphold the grounds (i) and (j) of the appeal.
     

Ground 4 (k)

“k. His Honour erred in mixed fact and law in failing to address the pleading in paragraph 4(1)(b) of the Statement pursuant to order 16 Rule 3(2)(a) of the National Court Rules, that there were errors of law on the face of the record of the purported decision to grant a New State Lease over the Land to Lady Ni Cragnolini in breach of the Land Act, in particular:

(i) Section 68 of the Land Act in that the Land was not available for leasing as “Government Land” as the term is defined in Section 2(1) of the Land Act, because it was subject to the Appellant’s State Lease.

(ii) Section 71 of the Land Act in that the Land Board did not hear and determine an application by Ni Cragnolini for the grant of the New State Lease properly or at all.

(iii) Section 69(1) of the Land Act in that the Land was not advertised as being available for leasing by public tender.”

134. The Appellant is the current registered proprietor of the land under State Lease Vol 72 Folio 225. The sixth Respondent produced another State Lease (“the new lease”) on the same property in proceedings OS 248 of 2018. The Appellant pleaded in paragraph 4(1) of the Statement filed under Order 16 Rule 3(2) of the National Court Rules that a decision by the second Respondent allegedly made on 26^th October 2011 to grant a State Lease Volume 33 Folio 200 (“the New State Lease”) of the subject land to the sixth Respondent, Lady Ni Cragnolini was in breach of the Land Act. It is alleged that sections 68, 71 and 69 of the Land Act were breached:
     

(i) Section 68 of the Land Act was breached in that the land was not available for leasing as Government Land because it was not free and available as it was subject to Appellant’s State Lease which was current and subsisting.

(ii) Section 69 of the Land Act was breached in that the land was not advertised as being available for leasing by public tender.

(iii) Section 71 of the Land Act was breached in that the PNG Land Board did not hear and determine an application by the sixth Respondent, Lady Ni Cragnolini for the grant of the new State lease properly or at all.

135. The Appellant argued that although extensive submissions were presented at the National Court by counsel for the Appellant, the trial judge did not address them. A perusal of the judgment shows, the trial judge did not consider the allegations of noncompliance of sections 68, 69 and 71 of the Land Act. The allegations relate to serious breaches of the Land Act and questioned the process involved in the grant of the new lease to the sixth Respondent. In the proceedings, I note the first to the Fifth Respondents did not file any rebuttal evidence. Neither the sixth Respondent. She did not enter appearance to defend the proceedings to protect the title that was granted to her, although she was advised of the proceedings.
     
136. Clearly on the face of the record, there were serious allegations of non-compliance and breach of sections 68, 69 and 71 of the Land Act, which the trial judge failed to consider in his judgment. I would therefore uphold this ground, (ground 4(k) of the Appeal).
     

Ground 4(L)

“L. His Honour erred in mixed fact and law in failing to address the pleading in paragraph 4(2) of the Statement pursuant to Order 16 Rule 3(2)(a) of the National Court Rules, that there was a breach of Wednesbury principles by the First & Second Respondents in the making the purported decisions to forfeit the Appellant’s state lease and grant a new state lease to Lady Ni Cragnolini, as they failed to take into account the zoning requirement applicable to the Land under the Physical Planning Act; and the fact that the Plaintiff paid it’s Land Rent, or that any default was immaterial and was remedied.”

137. The Appellant pleaded in paragraph 4(2) of the Statement that the decisions made to forfeit the Appellant’s State Lease and the grant of a second lease to the sixth Respondent was unreasonable under the Wednesbury principles. It was noted that the reasons for forfeiture was twofold: Firstly, to rezone the land from Agricultural lease to Commercial, and secondly, for failure to pay outstanding State Lease rentals. The Appellant submitted that a rezoning would not have affected the Appellant’s title. In respect of the rents, the Appellant has kept up to date with its rental payments up to 2018. The decisions of the First and the Second Respondents were therefore unreasonable.
     
138. The undisputed evidence shows that the Appellant was not given any opportunity to respond to both issues of rezoning and the outstanding land rentals. The Appellant was not given a chance to be heard before the grant of the purported second lease to the sixth Respondent. Again, there was no evidence produced by the Respondents to show that there were genuine reasons for actions and decisions allegedly made by the first and second Respondents. The evidence presented in the National Court show the Appellant has been faithful in paying its annual State Lease rentals and the rezoning would not have affected its proprietary rights in the State Lease. In any case if the Respondents were considering rezoning the land, they should have alerted the Appellant of their proposals. There was no basis for the forfeiture. In the circumstances, the purported decision of the First Respondent was clearly unreasonable. A perusal of the judgment show, the trial judge made no observations in his judgment in respect of the pleadings and submissions of counsel for the Appellant. I find, with respect, the trial judge fell in error in this respect.
     
139. I will uphold this ground (Ground 4(l) of the appeal).
     

Grounds 4(m)

“m) His honour erred in mixed fact and law in failing to address the pleading in paragraph 4(3) of the Statement pursuant to order 16 Rule 3(2)(a) of the National Court Rules, that there was denial of natural justice in not giving the Appellant the opportunity or proper opportunity to be heard because of the failure to give any or any proper Notice to Show Cause in breach of the principles of natural justice enshrined in Section 59 of the Constitution.”

140. The Appellant pleaded that there was a denial of natural justice in not giving the Appellant the opportunity or proper opportunity to be heard. This is because failure to give any or any proper notice to show cause was in breach of the principles of natural justice under section 59 of the Constitution. The Appellant maintained; it was not served the relevant notices to Show Cause for it to respond. The First and Second Respondents did not file any evidence in rebuttal. This was a valid ground for review raised by the Appellant. I note from the judgment, that the trial judge failed to consider the pleadings and submissions in respect of this important ground for judicial review.
     
141. Based on my findings and reasons given in grounds i), j) and k) above, I uphold this ground of appeal.
     

Ground 4(n)

“n) His honour erred in mixed fact and law in failing to address the pleading in paragraph 4(4) the Statement pursuant to Order 16 Rule 3(2)(a) of the National Court Rules, that there was in all circumstances, the actions of the Respondents were unlawful acts in breach of Section 41 of the Constitution.”

142. The Appellant submits that the trial judge failed to consider the pleading that the administrative decisions of the Respondents, were unlawful acts under section 41 of the Constitution.
     
143. Section 41 of the Constitution reads:
     

“41. Proscribed acts.

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—

(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, is an unlawful act.

(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it and may be discharged on the balance of probabilities.

(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.”

144. The Appellant raised a valid ground for the review of the decisions and actions of the First to the Fifth Respondents, on the basis that it was harsh and oppressive and not warranted, or justified, and therefore amounted to an unlawful act under section 41 of the Constitution. Whilst the ground raised under section 41 is a matter for possible alternative remedies, it is open to the Appellant to raise it as a ground for judicial review. The evidence shows the Respondents made decisions and did certain acts that were in breach of the Land Act and were harsh and oppressive. The allegations were brought before the trial judge to adjudicate. The trial judge, however, did not properly address this ground in his judgment. It appears the trial judge paid little attention to the arguments raised by the Appellant based on an erroneous presumption of compliance of statute law by the first to the fifth Respondents. In this respect, I find his Honour fell in error.
     
145. I will uphold this ground of appeal.
     

Ground 4(o)

“o) His honour erred in mixed fact and law in ordering costs on indemnity basis

against the Appellant because:

1. The circumstances of the case did not warrant the exercise of the Court’s discretion to award costs on indemnity basis.
   
2. The respondents did not seek costs on indemnity basis and there was no forewarning given that costs on indemnity basis would be sought.”
   

146. The trial judge awarded cost against the Appellant on indemnity basis citing the case of Opi vs Telikom (PNG) Ltd (2020) N8290. In the Opi vs Telikom, his Honour, Shepherd J extensively reviewed decided cases to distinguish cost on party/party basis to that of cost on indemnity basis. His Honour summarized the principles that can be applied when considering the issue at paragraph 235 of his judgment which reads:
     

“235. The salient principles which I consider can be distilled from these Australian cases and the cases in our jurisdiction which I have referred to are these:

(1) The purpose of a costs award on an indemnity basis, although compensatory is primarily punitive. As was stated by the Supreme Court in the Rex Paki case, an award of costs on an indemnity basis can be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy that punishment is warranted.

(2) An award of costs on a solicitor/client basis is made to compensate the receiving party for the fees and disbursements that the lawyer charges the client, to the extent that those fees and disbursements, if taxed, were “reasonably” incurred. They do not include unreasonable or unusual fees and disbursements.

(3) Because a costs award on an indemnity basis is more generous than a costs award on a solicitor/client basis, its scope extends beyond that to which a receiving party is entitled had a solicitor/client cost been ordered. It is intended as a full indemnity for all costs and expenses incurred preparatory to and during the proceedings, not just the legal fees and associated disbursements charged by that party’s lawyer(s). So for example a receiving party, if an individual, is entitled to claim for loss of income or the value of time wasted when attending to matters relating to the proceedings. Similarly, a corporation or business can claim for the value of time spent by its officers and employees when attending to the proceedings.

(4) An award of costs on a solicitor/client basis is intended to compensate the receiving party for legal fees and disbursements charged by that party’s lawyer in having to unnecessarily defend proceedings which were an abuse of process, where there was no defence on the merits, where the other party failed to explore and exhaust all prospects of having the matter settled without the need for court action or delay, where there has been defiance by the other party in complying with court orders and or where the receiving party has generally had to incur unnecessary expense through unmeritorious litigation.

(5) Forewarning in writing or by electronic means should always be given that costs will be sought on a solicitor/client basis if proceedings are wrongly instituted and then dismissed as being without merit, or if the circumstances are sufficiently egregious to warrant not just the disapproval by the Court but also punishment, that costs will be sought on a full indemnity basis.”

147. The relevant part of the trial judge’s decision appears at paragraph 13 of the judgment which reads:
     

“13. For the action, He has failed to demonstrate to the required balance beyond preponderance that the defendants have erred in complying with the Land Act section 122, including section 41 of the Constitution, and natural justice. And by order 16 Rule 4 he has failed to bring this cause of action within the time of 4 months because the judicial review proceedings now is 7 years old after the forfeiture. By Dupnai v Weke [2016] PGSC 43 ; SC 1525 (19 August 2016) he will not be accorded Judicial review. He has not made out a case for judicial review. He could have also utilized section 142 of the Land Act in accordance with Lae Bottling Industries Ltd v Rental Homes Ltd [2017] PGSC 43; SC1641 (8 September 2017). For all intent and purposes, he has not demonstrated to the full the balance beyond all preponderance that judicial review lies against the actions of the defendants themselves or through their agents or servants. He has failed on all fours and will see nothing but dismissal in its entirety this proceeding with Costs on an indemnity basis to follow the event: Opi v Telikom PNG Limited [2020] PGNC 168; N8290 (29 April 2020). And the reasons for so awarding are as set out in the facts above warranting the discretion to award in this manner.”

148. Clearly, the trial judge did not elaborate or provide any reasons for awarding cost on indemnity basis except for the reason that the Appellant has failed to prove its case. I find the trial judge’s reasons for decision does not fall within or meet any of the considerations set out in the Opi case. That is: there is no evidence of improper conduct by the Appellant and its lawyers. The proceedings instituted by the Appellant was necessary to protect its interest. There was no forewarning issued by the Respondents of seeking cost on indemnity basis should the Appellant fail in the proceedings. Finally, the Respondents did not seek cost of the proceedings on indemnity basis. I find, with respect, there was no basis for the trial judge to award cost on indemnity basis.
     
149. I, therefore, uphold this ground of appeal.
     

Counsel acting without instruction

150. The Court observed during the hearing that counsel and the Solicitor General who represented the first to the fifth Respondents did not have instructions to act for them. Yet the lawyers from the Solicitor General’s Office vigorously defended these proceedings. During the hearing the Court enquired whether the Solicitor General can defend these proceedings without instructions. Counsel for the Respondents submitted the Solicitor General represents the State in all matters and has ostensible authority to act for the Respondents. Despite having ostensible authority to act for the State and State instrumentalities, the Solicitor General must still have specific instructions to represent the State in a particular case. It has both an ethical and statutory duty to the Court, the State and other parties involved in the litigation.
     
151. There is still a more serious reason why prior instructions are necessary to legitimize representation as decided by the Supreme Court in The State v Zacchary Gelu & Manoburn Earthmoving Limited (2003) PGSC15, SC716. The Supreme Court clearly stated that the Solicitor General must act only on instructions from the Attorney General in all matters before the Courts where the State is a party in accordance with section 13 (2) of the Attorney General Act. Although there are differing views by this Court and the National Court, the decision in Manoburn is the leading authority on the issue until a five (5) men bench decides otherwise.
     

Conclusion

152. In the end I have upheld all grounds of appeal and shall allow the appeal and am inclined to grant the reliefs sought.
     

What orders should the Court make?

153. Apart from the orders sought by the Appellant in the appeal, I note there is a need to make appropriate orders for the creation of the relevant or substitute file by the Lands Department noting the interests of the Appellant within a reasonable time. This is necessary as the evidence filed in the proceedings show the relevant Lands file has gone missing. I have read the draft orders proposed by Kandakasi DCJ and agree with them.
     

The Decision and Orders of the Court

154. In summary the Court has found each of the grounds of the appeal have been made out by the appellant and have merit. Accordingly, each of the grounds are upheld and consequently the appeal is upheld in its entirety. The formal orders of the Court then are:
     
     1. The appeal is upheld.
        
     2. The judgment and orders of his Honour Justice Miviri handed down on 25^th September 2020 in proceedings OS(JR) 950 of 2018 The Church of Jesus Christ of Latter-Day Saints Inc. vs. Pepi Kimas & Ors is quashed.
        
     3. The Appellant’s application for judicial review is granted and orders in certiorari is made to bring into this Honourable Court and quash forthwith the following decisions of the Respondents:
        
        1. The decision by the First Respondent as delegate of the Second Respondent’s predecessor and Minister for Lands on or about 23^rd May 2007 and purportedly published in Gazette G82 dated 24^th May 2007 to forfeit the Appellant’s State Lease Volume 71 Folio 225 of Portion 1194, Milinch Granville, Fourmil Moresby, NCD being the whole of the land more particularly described in the State Lease (the Land).
           
        2. The decision by the Second Respondent on or about 26^th October 2011 (or some other date) to grant a State Lease Volume 33 Folio 200 of the Land to Lady Ni Cragnolini.
           
     4. The First to the Fifth Respondents shall forthwith take the necessary steps to locate the relevant Department of Lands and Physical Planning’s file for State Lease Volume 71 Folio 225 of Portion 1194, Milinch Granville, Fourmil Moresby, NCD being the whole of the land more particularly described in the State Lease (the Land) and failing that, create a supplementary file noting and where necessary registering the interests of the Appellant by no later than 26^th August 2022.
        
     5. By 01^st September 2022 the Secretary for the Department of Lands & Physical Planning, confirm in writing handed delivered to the Registrar of the Supreme Court on the same day that he has fully complied with term 4 of these orders with evidence of the same.
        
     6. The Secretary for the Department of Lands and Physical Planning shall appear before this Court per Kandakasi DCJ and confirm compliance in terms of term 5 of these orders, failing which he shall show cause as to why he should not be dealt with for contempt of Court.
        
     7. The Respondents shall pay the Appellant’s costs of both the National Court and this proceedings on a full indemnity basis, to be taxed, if not agreed.
        
     8. Time for entry of the order be abridged to the time of settlement which shall take place forthwith.

________________________________________________________________

Denton Lawyers: Lawyers for the Appellant

Solicitor General: Lawyers for the First to Fifth Respondents