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Kiliwa v Ail [2025] PGNC 293; N11439 (18 August 2025)

N11439

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 278 OF 2024

BETWEEN:
MICHAEL K. KILIWA
First Applicant

AND:
KULU KILIWA
Second Applicant

AND:
DR. KAEPA KEN AIL
First Respondent

AND:
ALA ANE, Registrar of Titles
Second Respondent

AND:
BENJAMIN SAMSON, Secretary – Department of Lands & Physical Planning
Third Respondent

AND:
HON. JOHN ROSSO, Minister for Lands & Physical Planning
Fourth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

LAE: DINGAKE J
12, 18 AUGUST 2025

LAND- subdivision and rezoned – State Leases – exemption of land from advertisement – Land Act 1996, Section 69 – principle of indefeasibility of title – Land Registration Act – Section 33(1)(a) – held the land was unlawfully exempted from advertisement and therefore the decision to grant State Lease over it to the First Respondent was unlawful and liable to be quashed.

Cases cited
Mosoro v Kingswell Ltd [2011] PGNC 151; N4450
Smith v Minister for Lands [2009] PGSC 60; SC973
Lupari v Somare [2008] PGNC 121; N3476

Counsel
Mr. Benny Tomake for the applicants
Dr. Kaepa Ken Ail, the first respondent, in person
Ms. Nancy Kibikibi for the State

JUDGMENT

1. DINGAKE J: INTRODUCTION: This is my judgment with respect to the substantive judicial review filed by the Plaintiffs (“Applicants”) seeking to review the decision of the Fourth Defendant that exempted the land described as Allotment 02, Section 404, East Taraka, Morobe Province contained in State Lease Volume 30, Folio 119 from advertisement and consequently granted a Residence Lease (Medium Covenant) of the land to the First Respondent on or about 15^th of August 2023.
   
2. The applicants are son and father respectively.
   
3. Leave for judicial review was granted on the 09^th of May 2025.
   

The Relief

4. By way of the substantive Notice of Motion filed pursuant to Order 16 Rule 5(1) of the National Court Rules, the Applicants seek the following relief:
   
   1. A Declaration that the decision of the Fourth Respondent or his delegate to exempt the land described as Allotment 02, Section 404, Lae (East Taraka), Morobe Province from advertisement under section 69(2) of the Land Act 1996 is unlawful and void ab initio.
      
   2. A Writ of Certiorari be issued into this Court and the decision of the Fourth Respondent dated 15^th August 2023 to grant the residence (medium covenant) lease to the First Respondent be quashed forthwith.
      
   3. An Order that the State Lease of the subject land registered to the First Respondent by the Second Respondent in complying with the decision of the Fourth Respondent be nullified, forfeited, revoked, cancelled or annulled forthwith.
      
   4. A Declaration that the Applicants are the current occupants of the Allotment 02, Section 404, Lae (East Taraka), Morobe Province (then reserved land) have sufficient interest by virtue of their occupation.
      
      1. Costs of incidental to this proceeding
         
      2. Such further Orders as the Court deems appropriate.
         
      3. Time for the entry of these orders be abridged forthwith.
         

Dispositive facts

5. The dispositive facts of this review application are straight forward.
   
6. It is common cause that the Second Plaintiff (the First Applicant’s father) owned property described as Allotment 10, Section 249 at Sagitarii, East Taraka, Lae, Morobe Province, that is adjacent to the land now the subject of dispute, namely Allotment 02, Section 404, East Taraka, Morobe Province, contained in State Lease Volume 30, Folio 119.
   
7. The aforesaid land, the subject of the dispute, was a reserve state land.
   
8. It is not in dispute that the applicants occupied the reserve land for several years, prior to it being subdivided and rezoned.
   
9. Sometime in 2020, subdivision and rezoning of the reserve land changed its status and the land was now available for any interested party to apply for State Lease.
   
10. Following the subdivision and rezoning, the First Respondent successfully applied and was granted Allotment 02, Section 404.
    
11. It appears from the evidence that on the 26^th of March 2021, the First Respondent made payment of K900.00 to the Department of Lands & Physical Planning as subdivision and rezoning fee. He also paid K200.00 as a Tender application fee on or about the 4^th of June 2021.
    
12. The First Respondent is the Title Holder of the land in dispute, being Allotment 02 Section 404 East Taraka, Lae City. He was granted Lease by the Fourth Respondent on the 15^th August 2023.
    
13. There is evidence in the form of a communication from the Chairman of the Papua New Guinea Land Board, stating the position of the Board regarding Lease LJ/404/002, contained in the affidavit in support deposed to by the First Applicant (Document No. 5), annexed thereto as MK-7.
    
14. The First Respondent was granted State Lease of Allotment 02 Section 404, referred to above, which was formerly reserve land on the 20^th of September 2023.
    

Grounds

15. The Applicants have raised, the following grounds to challenge the decision of the Fourth Respondent:
    
    1. Failing to take into account relevant considerations.
    2. Error of law
    3. Denial of natural justice
    4. Wednesbury’s unreasonableness
    5. Ultra-vires/Breach of procedure prescribed by Statute
    6. Real or apprehended bias
    7. Bad faith
       
16. Under ground (e) above, the Applicants contend, in effect, that the Fourth Defendant acted unlawfully in exempting land from advertisement and or failing to advertise the land in dispute.
    
17. I consider the ground of failure to advertise the land in dispute significant and propose to address this point first.
    
18. In the case of Mosoro Kingswell Ltd (2011) PGNC 151; N4450, my brother Cannings J, held, inter alia, that a decision to grant a State Lease over land that has been unlawfully exempted from advertisement is affected by error of law and is unlawful.
    
19. In this case it is not in dispute that the land in dispute was not advertised. The First Respondent in his affidavit, filed on the 28^th January 2025, Document 8, filed of record, says he made verbal inquiry regarding vacant lease at Morobe Provincial Lands Office, and was advised that there are five (5) newly allocated lands that are available and vacant, and he agreed to apply.
    
20. The First Respondent says further that on the 27^th June 2022, he was invited to attend a Special Land Board meeting and subsequent thereto the disputed land was allocated to him.
    
21. In my view, given that the land in dispute was allocated without a proper legal basis and in breach of Section 69(2), of Land Act 1996, the Fourth Respondent committed an error of law.
    
22. Section 69(2) of the Land Act 1996 provides that:
    

(2) The Minister may exempt land from advertisement for application or tender–

(a) where the lease is granted to a governmental body for a public purpose; or

(b) where it is necessary to relocate persons displaced as a result of a disaster as defined in the Disaster Management Act 1984; or

(c) where a lessee applies for a further lease; or

(d) where the State has agreed to provide land for the establishment or expansion of a business, project, or other undertaking; or

(e) where the land applied for adjoins land owned by the applicant and is required to bring the holding up to a more workable unit, providing that the claims of other neighbouring landowners are considered and their views taken into account in deciding whether to exempt the land from advertisement in favour of the applicant; or

(f) where the Department responsible for foreign affairs recommends that land be made available to the applicant for consular premises; or

(g) where the land is required for the resettlement of refugees; or

(h) where the applicant has funded the acquisition of the land from customary landowners in order to acquire a State lease over it; or

(i) where a lease is to be granted under Section 99 or 102; or

(j) where a new lease is granted under Section 110, 130 or 131.

23. In this case, it is common cause that the land in dispute was not advertised and none of the exceptions referred to in Section 69(2) of the Lands Act 1996 are applicable.
    
24. In my opinion, failure to advertise the land offends section 69(2) of the Land Act 1996.
    
25. Given the conclusion, I have reached the question that falls for determination is what relief would be appropriate in the circumstances of this case.
    
26. The manner in which the land in dispute ended up being awarded to the First Respondent is unsatisfactory, dubious and irregular as to amount to fraud. There is no evidence of actual fraud, but I am satisfied that constructive fraud has been established – and consequently fraud for purposes of Section 33 (1)(a) of the Land Registration Act has been established. Consequently, the registration of the lease in the name of the First Respondent cannot be allowed to stand.
    
27. This Court has a discretion as to the remedy to grant. (Date Christopher Smith v Minister for Lands (2009) SC 973; Isaac Lupari v Sir Michael Somare (2008) N3476).
    
28. On costs, the rule is that costs follow the event. I see no reason why costs should not follow the event in this case.
    
29. In the result, the Court orders that:
    
    1. A Declaration that the decision of the Fourth Respondent or his delegate to exempt the land described as Allotment 02, Section 404, Lae (East Taraka), Morobe Province from advertisement under section 69 (2) of the Land Act 1996 is unlawful and void ab initio.
       
       2. A Writ of Certiorari be issued into this Court and the decision of the Fourth Respondent dated 15^th August 2023 to grant the residence (medium covenant) lease to the First Respondent be quashed forthwith.
          
       3. An Order that the State Lease of the subject land registered to the First Respondent by the Second Respondent in complying with the decision of the Fourth Respondent be nullified, forfeited, revoked, cancelled or annulled forthwith.
          
       4. The First Respondent to pay costs to the applicants – on a party-to-party scale, such costs to be agree or taxed.

________________________________________________________________
Lawyers for the applicants: Luke Vava Lawyers
Lawyer for the second, third, fourth & fifth respondent: Solicitor General