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Sammy Lodge Ltd v Sipison [2024] PGSC 86; SC2618 (27 August 2024)

SC2618


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCM NO. 35 OF 2018 (IECMS)


SAMMY LODGE LIMITED
Appellant


AND
LUTHER SIPISON AS SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Respondent


AND
HON BENNY ALLEN,
MINISTER FOR LANDS AND PHYSICAL PLANNING
Second Respondent


AND
PAPUA NEW GUINEA LAND BOARD
Third Respondent


AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent


L&A CONSTRUCTION LIMITED
Fifth Respondent


AND:
DEPARTMENT OF ATTORNEY GENERAL
Sixth Respondent


Waigani: Kandakasi DCJ, Toliken J & Kaumi J
2023: 21st June
2024: 27th August


JUDICIAL REVIEW –Application to review decision on appeal against National Land Board decision – No challenge against registration of title in favour of successful appellant - Decision by a statutory authority – No reasons given for decision - No prescription by statute for reasons to be given – Whether decision reviewable – Decision maker obliged to give reasons for decision – No reasons provided – Good order, transparency and good administration require reasons to be given - Lands Act 1996 ss. 58 (9) and 62 – Indefeasibility of title – Only fraud or any of the grounds under s. 33 of the Land Registration Act can undo – No pleading and no case made out – No error in trial judge dismissing judicial review proceedings.


PARTIES & CAUSES OF ACTION – Decision by Head of State on advice – Challenge against decision – Correct party to be named – Head of State immune and incorrect party – Independent State of Papua New Guinea correct party – State correctly named as a party – Issue not arising – Appellant raising issue amounts to misrepresentation of facts and law – Constitution s. 86 (2) and s 94


Cases Cited:
Electoral Commission v. Pastor Bernard Kaku (2019) SC1866
H.R. Holdings Ltd v. Taka (2023) SC2411
PNG Bible Church Inc v. Mandi (2018) SC1724
Mudge v. Secretary for Lands & Ors [1985] PNGLR 387
Emas Estate Development Pty Ltd v. John Mea [1993] PNGLR 215
Koitachi Ltd v. Walter Schnaubelt (2007) SC870
PNG Deep Sea Fishing Ltd v. Critten (2010) SC1126
Wapi v. Dr. Eric Kwa & 5 Others (2022) N10362
Lee & Song Timber (PNG) Co Ltd v Nathanael Burua (2003) N2404
Re Gegeyo v. Minister for Lands and Physical Planning [1987] PNGLR 331
Pius Sankin & Ors v. Papua New Guinea Electricity Commission (2002) N2257
Sir Arnold Amet v. Peter Charles Yama & Electoral Commission (2010) SC1064
Ombudsman Commission v. Peter Yama (2004) SC747
Godfrey Niggints v.Henry Tokamv & 2 Ors [1993] PNGLR 66
Mission Asiki v. Manasupe Zurenuoc & Ors (2005) SC797
Hon Ben Micah MP v. Rigo A Lua (2015) SC1445
Wari v. Ramoi and Dibela [1986] PNGLR 112


Counsel:
Mr. T. Tape, for the Appellants
Mr. R. Uware, for the First, Second, Third, Fourth and Sixth Respondents
Mr. I. Molloy, for the Fifth Respondent


27th August 2024


  1. BY THE COURT: Sammy Lodge Limited (Sammy) appeals against the whole of the decision of the National Court in proceedings OS (JR) 520 of 2017. That decision refused with costs, Sammy’s application for judicial review of a decision upholding L&A Constructions Limited (L&A Construction) appeal, and setting aside of a decision by the National Land Board (Land Board) which granted a certain portion of land to Sammy and instead grant the land to L&A Construction.

BACKGROUND FACTS


  1. The land the subject of this proceeding is described as State Lease Portion 627, Milinch of Granville, Fourmile of Port Moresby, National Capital District (the Land). The Land was the subject of a forfeiture and Urban Development License (UDL) granted to L&A Construction in 2015. The purpose of the UDL was to enable L&A Construction to occupy the Land and do a feasibility study to be presented to the Land Board. L&A Construction entered the Land, occupied it and constructed various workshops and other buildings in accordance with the terms of the UDL.
  2. On 21 October 2016, by advertisement in the National Gazette tenders were called for interested persons to apply for the Land. Ten interested parties applied for the Land, which was confirmed in National Gazette number G80 on 24 February 2016. On 29 February 2016 the UDL in favour of L&A Construction was extended. On 24 March 2016 the PNG Land Board heard all applications for the Land and eventually decided to grant the Land to Sammy. The decision was communicated to Sammy by a letter dated 18th April 2016.
  3. Being aggrieved by the Land Board’s decision a Dr. Peter Ga’allah on behalf of Tropical Paradise Hotel and Apartment Limited and Mr. Darryl Kamen appealed to the Minister for Lands and Physical Planning (the Minister). Sammy objected to those appeals by letter dated 20 June 2016. L&A Construction also appealed against the decision. However, Sammy was not informed nor notified of L&A Construction’s appeal. Consequently, Sammy did not take any issue with that appeal.
  4. Eleven months after the lodgment of the appeal, a decision on the appeal was arrived at upholding L&A Construction’s appeal. The decision set aside the decision of the Land Board and granted the Land to L&A Construction. By letter dated 09 May 2017, Sammy was informed of the decision. The decision was also published in the National Gazette No. G354 of 05 May 2017. No reasons were given for the decision. Sammy being aggrieved by the decision, applied for leave for judicial review of that decision. Leave was granted by Her Honour, late Nablu. J. on the 03 October 2017. The substantive Review was heard by Her Honour, Thomson, J. on 12 December 2018. On 14 December 2018, Her Honour delivered her decision refusing the review application with costs. This appeal is against that decision.

APPEAL GROUNDS


  1. The grounds of appeal are set out at paragraph 3.2 (a), (b), (c), (d) and (e) of the Notice of Appeal. They are reproduced below:

“3.2 The primary judge erred in law and in fact in that Her Honor failed:

(a) In making findings against the Appellant whereby Her Honor erroneously held that the Appellant failed to plead either constructive or actual fraud against the Fifth Respondent or any other Respondents in the Appellant's amended Statement when in fact it was wrong in law to plead allegation of fraud either constructive or actual fraud against the Fifth Respondent or any other Respondents in the application for judicial review.

(b) In that Her Honor erred in law when Her Honor made a lot of emphasis on Section 33 of the Land Registration Act and thereby making findings against the Appellant for lack of pleading of fraud particularly against the Fifth Respondent when in fact the judicial review only concerned the review of decision of the Head of State made in accordance with the advice of the National Executive Council (NEC) to grant the State Lease to the Fifth Respondent and thus it was wrong in law particularly in the application for judicial review to plead either constructive or actual fraud against the Fifth Respondent.

(c) In that Her Honor erred in law when Her Honor held that the Appellant has failed to establish proper grounds for judicial review known to law when in fact the Appellant has correctly established breach of natural justice which is a proper ground for judicial review known to law whereby judicial view relief is available.

(d) In making findings against the Appellant whereby Her Honor erroneously held that there was no statutory duty under Section 62 of the Land Act for the Head of State or either the Minister to give reasons when in fact, there was an implied statutory duty under the provision for the Minister or the Head of State acting upon advice to give reasons as he was dealing with competing interests which required the Head of State or the Minister to give reasons as to why he acted the way he did.

(e) In that Her Honor erred in law when Her Honor held that the decision of the Head of State was non-justiciable and that it could only be reviewed based on the ground of ultra-virus when in fact breach of natural justice was also a ground for review of decision of the Head of State.”

ISSUES FOR RESOLUTION


  1. Based on the grounds of the appeal the following issues are presented:

ADDRESSING THE ISSUES AND GROUNDS OF APPEAL


(a) Issues and appeal grounds (a) and (b)
  1. We deal firstly, with issues (a) and (b) and hence grounds (a) and (b) of the appeal together as they have to do with the pleading or otherwise of fraud or constructive fraud in judicial review proceedings to impugn the indefeasibility of title. The issues read:
(i) Arguments of the parties
  1. In respect of these two grounds, Sammy argues, given that the decision to uphold the appeal by L & A Constructions without first giving notice and hearing it which amounted to a breach of the principles of natural justice, there was no need to plead actual or constructive fraud. It was sufficient for Sammy to plead denial of natural justice, which it did. In taking that position, reliance is placed on the decision in Electoral Commission v. Pastor Bernard Kaku (2019) SC1866 at [44].
  2. On the other hand, all the respondents’ submissions are firstly, that because the fifth respondent had become registered proprietor of the Land, indefeasible of title accrued. Hence, only fraud could undo the indefeasibility of title. Consequently, it was necessary to plead actual or constructive fraud. This Sammy did not do. Consequently, the learned trial judge was correct in arriving at her decision for the reasons she gave. Secondly, the respondents point to Sammy not appealing against this finding which alone is fatal to its appeal. Finally, the respondents point out that Sammy’s claim that it could not raise fraud in judicial review proceedings (although it could raise “constructive” fraud) is erroneous.
  3. I note the learned trial judge discussed the issue of fraud and indefeasibility of title in her decision. The main basis for the decision of the learned trial judge was the principle of indefeasibility of title. That principle in short says, registration of one’s interest in a title to a real property is conclusive and free from all. The only exception to this is fraud and or any of the other grounds under s.33 of the Land Registration Act.
  4. The law with respect to judicial reviews is well settled in our jurisdiction. I agree with Sammy that, judicial review is about the process and procedure involved and not the substantive decision: Electoral Commission v. Pastor Bernard Kaku (supra) at [44]. In the present case, two processes had taken place. The first was the decision of the Head of State on the appeal against an award of the Land to Sammy. The second was following that successful appeal, L & A Construction successfully applied for registration of the title to the Land in its favour. Given that, Sammy had to challenge both processes and not just the first of the two. Sammy correctly applied for leave for judicial review of the decision of the Head of State upholding the appeal against the Land Board’s decision based on a denial of its right to be served with the notice of appeal and be heard before the decision on appeal could be arrived at. However, it failed to challenge the registration of the title in favour of L & A Construction by alleging fraud or any of the other grounds under s. 33 of the Land Registration Act.
  5. The question of pleading and proving fraud against a registered title holder arose in the recent Supreme Court decision in H.R. Holdings Ltd v. Taka (2023) SC2411 (per Kandakasi DCJ, Cannings and Dowa JJ.). That was a case in which the Registrar of Companies (the Registrar), purporting to act under s.373(4) of the Companies Act, sold a property to the first respondent, Julie Taka. The Registrar believed he held the property on constructive trust, as title in the property was held by a deregistered and defunct company. In refusing an appeal under s 408(1) of the Companies Act against that sale, the National Court found the Registrar had acted unlawfully and improperly in selling the property to Julie Taka. However, that was not sufficient to amount to a finding of fraud against Julie Taka, in the absence of proper pleading with particulars of fraud against her. On appeal against that decision, the Supreme Court upheld the National Court’s decision. In so doing the Court noted the only pleading there was in these terms:

“The Second Respondent as the Transferor and the First Respondent as the Transferee, acted in bad faith by executing the Transfer Instrument on 30th September 2016, despite the fact that no consideration for the transfer was specified in the Transfer contrary to section 42 (2) of the Land Registration Act.”


  1. The Court found this pleading was no pleading at all in these terms:

“This in our respectful view, is no pleading of the relevant facts with particulars. Instead, this is a statement of conclusion or opinion. Without any factual foundation laid in the pleadings, such conclusion does not amount to any pleading. This is like praying for a relief without foundation in the main body of a parties pleading. Such a statement has been held by this Court to be no pleading at all. The decision of this Court in Central Bank of Papua New Guinea v. Gabriel Tugiau (2009) SC1013 is an example of a case on point.... The law requires proper pleadings with particulars before any claim or prayer for relief can be granted.”


  1. Applying the law to the facts of the case, the Court held:

“In the present case, the learned trial judge, found there was no pleading of fraud against Taka. A close examination of the notice of appeal which commenced and formed the basis for the proceedings in the National Court, shows no expressed pleading of fraud with particulars, other than the bare mention of bad faith ... against Taka. Similarly, there is no pleading that pleads facts sufficiently to lead to the inference or conclusion that Taka acted in bad faith and or was complicit to the actions of the ROC. The learned trial judge therefore correctly found there was no foundation in the pleading. That finding was an inevitable finding and the only finding open to the trial judge. Accordingly, we find no error in her decision.”


  1. The opposite was the case in the judicial review matter of PNG Bible Church Inc v. Mandi (2018) SC1724, (per Kandakasi DCJ, Toliken and Bona JJ.). There, the Court decided to nullify a titled to a property that was registered in Mandi’s name on account of constructive fraud. As the Court reasoned, this was because:

“....the due process under the relevant provisions of the NHC Act and the Lands Act were not followed to have the NHC’s interest in the property extinguished. The NHC was yet to complete its process under its Act when the invalid gazettal came about and hijacked the process resulting in the property being granted to Mr. Mandi and title registered in his name. The National Court found him guilty of deceitful conduct when dealing with the NHC. At the relevant time he was a pastor employed by the Church and was for all practical purposes representing the interest of the Church. Then after he ceased to be an employee and pastor of the Church for reasons only known to Mr. Mandi himself and those who facilitated the transfer of the property to him used a process that was clearly contrary to the prescribed process to first extinguish the NHC and the Church’s interest in the property and secondly have the property and its titled transferred to Mr. Mandi.”


  1. In these circumstances the Court the found:

“Mr. Mandi and those within the Lands Department who worked with him committed acts of fraud to enable him to secure the property and its title. Consequentially, we find the title secured and registered in the name of Carol Mandi to the property the subject of these proceeding is invalid and is of no force and effect.”


(iv) Applying the law to the present case
  1. In the present case, Sammy chose only to challenge the decision upholding the appeal against the Land Board. This ignores the fact that, based on that decision, L & A Construction proceeded to apply for and secured registration of title to the relevant land in its favour. Upon registration, indefeasibility of title accrued in favour of L & A Construction. Given that, logically and necessity required a challenge also against the registration based on actual or constructive fraud or any of the grounds under s. 33 of the Land Registration Act, consistent with the well settled law on point: See, Mudge v. Secretary for Lands & Ors [1985] PNGLR 387; Emas Estate Development Pty Ltd v. John Mea [1993] PNGLR 215; Koitachi Ltd v. Walter Schnaubelt (2007) SC870; PNG Deep Sea Fishing Ltd v. Critten (2010) SC1126, for example of cases on point. Despite the clear law on point, Sammy made a deliberate choice against challenging the registration of title and instead, determined that, it was sufficient to challenge only the decision on appeal on the ground of denial of natural justice. If there was no registration of title in favour of L & A Construction, proceeding in the way Sammy proceeded would have been in order. Unfortunately, that was not the end of the matter. L & A Construction acquired indefeasible title, after having had a UDL over the same property.
  2. For these reasons, we answer the first two issues as follows:

Answer: Yes, where indefeasibility of title as occurred following registration of title in favour of the successful party in the appeal, it was necessary to plead fraud and establish it to undue the indefeasible title vested in L & A Construction.


(b) Did the learned trial judge err in holding no proper ground for judicial review was pleaded when the appellant alleged breaches of the principles of natural justice?

Answer: Yes, where indefeasibility of title as occurred following registration of title in favour of the successful party in the appeal, it was necessary to plead fraud and establish it, which Sammy failed to do. With any such pleading there was no proper ground for judicial review pleaded.


(b) Issues and appeal ground (c)
  1. This leaves us to deal with the remaining three grounds (c), (d) and (e) of appeal and the two related issues they give rise to. We will deal with the first of the two issues first. The issue is:

(c) Is there an implied duty under s. 62 of the Lands Act for the Head of State or the Minister to give reasons for either of their decisions in an appeal against a Land Board decision?


(i) Relevant law
  1. This issue was presented before Kandakasi DCJ in Wapi v. Dr. Eric Kwa & 5 Others (2022) N10362. Counsel for the State in that case argued:

“...since there is no requirement in the Lands Act for the Land Board or the Head of State acting on advice to give reasons for their respective decisions, this Court cannot read into the relevant provisions of the Act a requirement for them to do so for their respective decisions.”


  1. As his Honour noted in that case, the relevant provisions of the Land Act are ss. 58 and 62, which read as follows:

“58. Meetings of the Land Board, reports, etc.

...

(9) In respect of each application the Land Board shall recommend—

(a) the applicant to whom, in the opinion of the Land Board, the State Lease should be granted; and

(b) the applicant who, in the opinion of the Land Board, is the second-choice successful applicant; and

(c) the applicant who, in the opinion of the Land Board, is the third-choice successful applicant,

and where the Land Board, in making a recommendation in any case, considers that two or more applicants are of equal merit, it may decide the matter by ballot and shall report on the ballot to the Minister within 14 days.

(10) The Chairman shall forward notice of the Land Board's recommendations, other than a recommendation to which Subsection (8) applies, to every person who, in his opinion, is interested in an application or matter dealt with by the Board.

(11) A member of the Land Board shall not sit on any matter in which he is directly or indirectly interested.”

...

“62. APPEALS.

(1) A person aggrieved by a decision of the Land Board may, not later than 28 days after notice is forwarded under Section 58(10), forward a notice of appeal to the Minister.

(2) An appeal shall be accompanied by a deposit of K500.00, which shall,

subject to Subsection (3), be refunded when the appeal has been decided.

(3) If the Head of State, acting on advice, thinks that the appeal has been

made on frivolous grounds, the Head of State, acting on advice, may reject the appeal and direct that the whole or any portion of the deposit shall be forfeited to the State.

(4) Subject to Subsection (5), the Head of State, acting on advice, shall

determine an appeal under this section, and his decision is final.

(5) Where an appeal under this Section is upheld, the Head of State, acting on advice, may refer the matter back to the Land Board for re-hearing.”


  1. As could be observed from these provisions, there is no expressed requirement for the decision makers to give reasons for their decisions. This does not necessarily follow that the decision makers are licensed to make decisions without giving any reason. Instead, as Kandakasi DCJ noted, it is “trite law that every public decision maker is obliged to give reasons for their decision”. In support of that proposition, his Honour cited several decisions. That included his own single member Supreme Court decision in Electoral Commission v Bernard Kaku (supra). His Honour also cited and quoted from his decision in Lee & Song Timber (PNG) Co Ltd v Nathanael Burua (2003) N2404, where he discussed the law in the following terms:

“One of the minimum requirements of the principles of natural justice enshrined in our Constitution under s.59 (2) is the duty to act fairly, and in principle, to be seen to be acting fairly. This is in effect a codification of an old established principle represented by cases like that of R v. Sussex Justice; Ex Parte McCarthy [1942] 1 K.B. 256.


The need to provide good reasons for any decision-maker for a decision he or she makes is an important part of the principles of natural justice. For a failure to give reasons has the potential to form the foundation for a suggestion or suspicion that the decision is without good reason. Lord Denning in General Electric Co. Ltd v Price Commission [1975] 1 C.R. 1 at 12 made that clear in these terms:

‘If it (the decision maker) gives no reasons in a case when it may reasonably be expected to do so, the Courts may infer that it had no good reason for reaching its conclusion and act accordingly.’”


  1. As his Honour noted, he was not alone in that view. Earlier decisions like the one in Re Gegeyo v. Minister for Lands and Physical Planning [1987] PNGLR 331 at [335] enunciated and applied these principles, which his Honour re-echoed and applied in his earlier decisions in Pius Sankin & Ors v. Papua New Guinea Electricity Commission (2002) N2257. There his Honour stated:

“It is settled law that, a discretion that is vested in a decision-maker in a democratic society such as ours must be exercised on proper consideration as to the relevant facts and the law. There is no such a thing as unfettered discretion. Good reasons must be given for an exercise of discretion. A failure to do so may leave open the floodgate for all sorts of allegations, including allegations that the discretion was exercised for ulterior motives. For examples of authorities on this point, see The Application of Moge Enga and Kuipi Group in the Matter of a Decision of the Minister for Lands Concerning Section 30 Allotment 7 Mt. Hagen [1995] PNGLR 246 and An Application of the NCDIC [1987] PNGLR 339.”


  1. Then having regard to these authorities, he went on to say:

“Providing reasons for decisions made by public authorities is a necessary element of being transparent unless the security of the nation or a statute specifically dictates or provides otherwise. Hence, I do not consider it appropriate that it should be left to the circumstances to dictate whether or not reasons should be provided for every decision by a public authority or tribunal. The reason for this is simple, unless good reasons are provided, a decision by a public authority or tribunal could be perceived as being arrived at unfairly and being actuated by such things as bias, bribery and so on and not necessarily on its merits.”


  1. As his Honour noted in that case, several Supreme Court decisions reinforce and reiterate these principles. This line of decisions includes the decision in Sir Arnold Amet v. Peter Charles Yama & Electoral Commission (2010) SC1064, Ombudsman Commission v. Peter Yama (2004) SC747, Godfrey Niggints v Henry Tokamv & 2 Ors [1993] PNGLR 66, Mission Asiki v. Manasupe Zurenuoc & Ors (2005) SC797 and Hon Ben Micah MP v. Rigo A Lua (2015) SC1445. In the last case, the Supreme Court elaborated on the principles in this way:

“If a decision-maker has a duty to accord natural justice, there is a duty to give reasons; and if no reasons are given, that means there are no good reasons, and the decision-maker will have acted in excess of jurisdiction. If there is no express duty to give reasons, the duty will be implied. Those principles were applied by the Supreme Court in Ombudsman Commission v Peter Yama (supra) and Mision Asiki v Manasupe Zurenuoc (2005) SC797.


  1. What is the import or preponderance of these authorities? Although there is no expressed provision requiring the Land Board and the Appeal Authority to give reasons for their decisions, the preponderance of decisions of the Supreme and National Court’s require as a matter of law, that reasons be given for transparency, better accountability, and sound public administration considerations.
  2. In the present case, the respondents did not present any argument against this well settled principle of law and make a case for us to arrive at a conclusion different to the one arrived at in Wapi v. Dr. Eric Kwa & 5 Others (supra). Hence, the principles discussed and enunciated in that decision equally applies here. Proceeding on that basis, we answer the question in issue (c) as follows:

(c) Is there an implied duty under s. 62 of the Lands Act for the Head of State or the Minister to give reasons for either of their decisions in an appeal against a Land Board decision?


Answer: Yes, there is an implied duty under s. 62 of the Lands Act for the Head of State or the Minister to give reasons for either of their decisions in an appeal against a Land Board decision.


(c) Issue (d) appeal grounds (d) and (e)

Whether the decision of the Head of State acting on advice of the NEC made in breach of natural justice is non-justiciable.


  1. This leaves us to deal with the last and remaining issue. The issue is whether the decision of the Head of State acting on the advice of the NEC made in breach of the principles of natural justice is non-justiciable. This issue is raised by the remaining appeal grounds (d) and (e).
  2. Whist accepting the proposition that there can be a challenge against a decision on the grounds of breach of natural justice, which is a recognized ground in judicial review, the first, second, third, fourth and sixth respondents submit there can be no action against the Head of State. They submit the challenge in the trial Court was an action against the Head of State. In so arguing, they rely upon the decision in Wari v. Ramoi and Dibela 1986] PNGLR 112. Of course, the appellant argues to the contrary.
  3. We point out at the outset that, the decision in Wari v. Ramoi and Dibela (supra) was also out of a decision on appeal against a decision of the Land Board. The decision is, hence, directly relevant and applicable to the present case. Then turning specifically to the arguments, we find there are three serious problems with the respondents’ submission. The first problem is this. The submission is misleading, and it incorrectly presents the relevant facts as to the question of whether the Head of State was a party to the proceeding and what the decision in Wari v. Ramoi & Dibela (supra) stands for. Following on from that, is the second problem. The proceedings in the Court below did not name the Head of State as a party to the proceedings. That position is carried into this appeal. Clearly, the Head of State is not named as a party to the proceedings in the trial Court and now in this appeal proceeding.
  4. Thirdly, the decision in Wari v. Ramoi & Dibela (supra) did in fact point out that, because the Head of State only acts on the advice, under s. 96 (2) of the Constitution, there can be no action against the Head of State personally. Additionally, the question of what advice was given to the Head of State is non justiciable by virtue of s. 86 (4) of the Constitution. That was not the end of the matter for the decision under consideration. The decision went on to say, immunity of the Head of State did not mean that, there is no recourse for any breach of peoples’ rights, freedoms or interest by actions taken by the National Executive Council or any public authority acting through the Head of State. Instead, as Kidu CJ (as he then was) also pointed out in Wari v. Ramoi & Dibela (supra):

“This does not mean that the contents of the decision by the Head of State on advice cannot be questioned or contested. I agree with the view expressed by Pratt J in The Minister for Lands v. Frame (at 477) that s 86(2) of the Constitution does not mean that an ultra vires (or unconstitutional) act of the Head of State on advice cannot be challenged:


‘... To maintain that because the Governor-General has caused a regulation to be published in the Gazette following on advice, and because the advice received by the Governor-General is non-justiciable means that no consequent regulation can be challenged as ultra vires is a proposition of law so fundamentally misconceived as to warrant no further consideration.’


If the proposition rejected by Pratt J was indeed the law, it would cause grave constitutional and legal problems.”


  1. There is indeed provision made in the Constitution by s. 247 (2) for the Independent State of Papua New Guinea (or in short, the State) to be sued instead. Again, the decision in Wari v. Ramoi & Dibela (supra), per Kidu CJ noted that position and ably explained well in these terms:

“The third relevant provision is in s 247(2) of the Constitution. It says:


‘(2) Papua New Guinea may sue and be sued, in accordance with an Act of the Parliament.’ (There is in fact such an Act, the Claims By and Against the State Act (Ch No 30)).


It is to be noted that it is Papua New Guinea which the Constitution permits to be sued and not the Head of State, the Governor-General or the National Executive Council. Papua New Guinea is defined in the Constitution, Sch 1.2, as meaning the Independent State of Papua New Guinea. So a person who is aggrieved by any act or acts of the State must proceed against the Independent State of Papua New Guinea. The Head of State, the depository of executive power of the People (s 138 of the Constitution) exercised these powers on advice and on behalf of the People or the State (the People’s collective name). And therefore it is only right and proper that in relation to all official acts done by the Head of State an aggrieved person proceed against the State and not the Head of State personally.”


  1. Kapi DCJ (as he then was) who was the other member of the Court agreed with Kidu CJ. The third member of the Court Amet J (as he then was) came to the same view in a separate opinion. In the end the Court was unanimous on the issue.
  2. Based on the foregoing, the answer to the question in issue (d) should be obvious and we answer in the following way:

(d) Whether the decision of the Head of State acting on advice of the NEC made in breach of natural justice is non-justiciable.


Answer: Yes, only as against the Head of the State. In his place the State can be sued for any breach of a right or interest or where a cause of action arises from the decisions and or actions of the NEC or other public authorities through the Head of State.


OUTCOME ON THE APPEAL


  1. What should be the outcome in this appeal then? Sammy, the appellant succeeds on his claim of the principles of natural justice not being observed. This is the case, on account of two factors. Firstly, is the fact that Sammy was not served with a copy of L & A Construction’s appeal against the Land Board’s decision and was not heard before the final decision. Secondly, is the fact that, no reasons for the decision to uphold L & A Construction’s appeal was ever given. However, that is not the end of the matter. Based on the decision in its favour, L & A Construction applied for and had is ownership interest registered in the title. Sammy should have but did not take any step to stay any action based on the decision on appeal or lodge a caveat, which could have prevented such registration. Upon registration, indefeasibility accrued in favour of L & A Construction. That could only be revisited and set aside by a successful claim based on fraud or any of the grounds under s. 33 of the Land Registration Act. That, Sammy failed to do by properly pleading fraud and establishing it by appropriate evidence. The learned trial judge, therefore, correctly held, that failure was fatal and dismissed Sammy’s application. There has been no specific challenge against the finding of no fraud being pleaded and established and the case dismissed on that basis. In these circumstances, we find no error in the learned trial judge’s decision. Accordingly, we would dismiss the appeal with costs.

ORDERS OF THE COURT


  1. Based on the foregoing reasons we would make the following orders:
    1. The appeal is dismissed.
    2. The order of the National Court given on the 14 December 2018 in proceedings OS (JR) 520 of 2017 is affirmed.
    3. The appellant shall pay all the respondents’ costs of the proceedings, on a party-party basis, which shall, if not agreed, be taxed.

Judgment and orders accordingly.


________________________________________________________________
Kandawalyn Lawyers: Lawyers for the Appellant
Solicitor-General: Lawyers for the First, Second, Third, Fourth & Sixth Respondents
Pacific Legal Group: Lawyers for the Fifth Defendant

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