N11519
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS 1081 OF 2014

BETWEEN:
ENGA PROVINCIAL GOVERNMENT 
Plaintiff

AND:
PETER WAKAL
First Defendant

AND:
ALA   ANE, in his capacity as the 
Acting Registrar of Titles or his successor,
Department of Lands and Physical Planning
Second Defendant

AND: 
SAMSON BENJAMIN in his capacity as the
Secretary for Lands and Physical Planning
Third Defendant

WABAG: KANGWIA J
24 JANUARY,  3 OCTOBER 2025

CIVIL JURISDICTION – State land – land surveyed and subdivided - whether new state leases created from reserve land or waste and vacant land - whether new state leases properly created. 
 
Cases cited
JNS Limited v Lae Builders & Contractors Ltd [2015] SC1552

Counsel
L. Kandi, for the plaintiff
P. Wakal, the first defendant, in person
J. Yapao, for the second and third defendants

1.	KANGWIA J: The Plaintiff by writ of summons claims declarations that the creation of section 36 allotment 2 and section 11 allotment 4 in Wabag town and titles issued therefrom to the First Defendant are null and void. It is alleged that the two lands had existing public infrastructure and reserved from lease. 

2.	State lease Volume 16 Folio 229 section 36 allotment 2 was fraudulently created from Portion 226 and transferred to the First Defendant when the Plaintiff held a CAO (dated 4 January 1996) over it. In like manner State leases Volume 16 Folio 228 section 11 allotment 4 was fraudulently created out of section 11 allotment 2 and transferred to the First Defendant when section 11 allotment 2 was reserved for police station.  The Plaintiff relies on the affidavits of Melpai Yakili filed 4 May 2015, 8 May 2015 and 10 March 2020 respectively and the affidavit of Serah Sipani filed 14 February 2020 in support of its claims. 

3.	The Defendants in unison contend that the Plaintiff has no standing as the State leases the subject of the proceedings were created from separate vacant and waste land and therefore the titles issued therefrom were done following due process. The further argument by the First Defendant is that the proceeding is statute barred pursuant to s 62 of the Land Act for not appealing against the decision of the Land Board. They rely on the affidavit of Peter Wakal filed 27 February 2014 and 28 April 2015 respectively, the affidavits of Ala Ane filed 20 February 2020, and the affidavit of Jack Yakatung Bakus filed 11 April 2024 to support their contentions. 

4.	Since the standing of the Plaintiff is raised in submissions, prior attention shall be given to it as it touches on jurisdiction. The law under s 62 of the Land Act states that a person aggrieved by a decision of the National Land Board may not less than 28 days after notice is forwarded under s 58 (10) forward a notice of appeal to the minister. 

5.	From material before the court s68 of the Land Act could not be properly utilised by the Plaintiff as an aggrieved person by the decision of the National Land Board since the plaintiff was denied the right to be heard when the applications for State leases were exempted from advertising. How could the Plaintiff know any decision made secretly? Even then court proceedings have overtaken the necessity to utilise s 62 of the Land Act. Secondly the state leases were issued on 20 February 2012. The Court proceeding in WS 1081 between the Plaintiff and defendants was instituted in 2014 and the proceeding is within the time limit set by s 18 of the Frauds and limitations Act. This argument has no merit and is refused. 

6.	Going back to the substantive proceeding it is undisputed that the land the subject of the controversy are not customary lands. They both are state lands. It is also undisputed that the First Defendant engaged a private surveyor to survey the lands from which subdivisions were made with titles created and issued. The centre of controversy relates to the original status of the lands from which section 36 allotment 2 and section 11 allotment 2 were created. The Plaintiff says new State leases were fraudulently created from land already occupied by State entities while the Defendants argue the contrary and assert that the new State leases were created from waste and vacant government land.

7.	The issues arising from the competing arguments is whether the two State leases granted to the First Defendant were fraudulently created from land already occupied by state agencies or whether they were created from waste and vacant lands.  
When the issue the centre of controversy relates to the manner in which the state leases were created it would require compelling evidence from the 2nd and 3rd Defendants who represent the two organisations responsible for the process in creating, obtaining and registering state leases as keepers of the official records like maps and correspondences relating to State lands to assist in ascertaining the original status of the two pieces of land in controversy and whether proper processes were followed to create the new State leases. 
During the trial little assistance has been received from the Second and Third Defendants. They instead tendered into evidence a lot of documents of no relevance and gave sworn evidence of lost files during a transition from old to new product and relocation of offices as the cause of not being able to provide full physical records.  Despite their inability to provide full physical records their forceful argument is that new state leases granted to the First Defendant were created from waste or vacant land, and not part or parcel of portion 226 and section 11 allotment 2.  As it appears that the two state leases were processed in the same manner and granted simultaneously, they shall be considered together. I will refer to the two pieces of land in controversy as portion 226 and police reserve. 

A.	WHETHER NEW STATE LEASES CREATED FROM RESERVE OR VACANT GOVERNMENT LAND?

8.	On whether the new state leases were created from existing state reserves or vacant land there is overwhelming use of the term “part portion 226” in the various documents tendered into evidence which eventually resulted in the creation of allotment 2 section 36. Nothing much is said about the police reserve in the various documents. I also had the benefit of perusing the various maps and survey plans tendered into evidence at trial. It appears the original survey plan for portion 226 was done for a cultural centre in 1976. There is no evidence of any original survey plan for the police reserve. 

9.	When compared with the Zone plan authored by Daniel Natera, portion 226 is identified as open space and borders with s 36 on which the primary school is sitting on. The police reserve appears as a standalone land. Starting from the border of Portion 226 and the primary school, the land following the creek down to the end of Wabag town to the east is identified as vacant government land. The new state leases on allotment 2 section 36 and allotment 4 section 11 do not appear on the Wabag Zone plan authored by Daniel Natera.   

10.	According to the survey plan authored by Vaki Vailala the new state leases appear and they seem to cover most of the vacant government land outside of portion 226 and the police reserve. What is intriguing though is that the new state leases on the survey plan authored by Vaki Vailala covers land on both sides of the creek. The creek seems to be running in the middle of the two new state leases.

11.	Despite that the maps are persuasive enough for me to affirm that the two new state leases were created from vacant government land on both sides of the creek. How the creek in the middle of the new state leases can be reconciled with physical planning requirements remains a mystery as there is no evidence for it. The mystery can be attributed to a lack of proper survey plans unlike the original survey plan for portion 226. 

12.	In like manner when the new state leases show the creek to be running in the middle it raises niggling doubts as to whether proper physical planning matters prescribed by s 5 of the Physical Planning Act were considered before creating the new state leases. This provision states,

5. CONSIDERATION OF PHYSICAL PLANNING MATTERS UNDER THIS ACT. 

Where consideration is being given to a physical planning matter under this Act, the appropriate authority shall take into account such of the following matters as are of relevance to the matter under consideration:–
(a) the provisions of the Environmental Planning Act 1978, the Environmental Contaminants Act 1978, and the Conservation Areas Act 1978;
(b) the impact on the environment and, where harm to the environment is likely to be caused, any means that may be employed to protect the environment or to reduce that harm;
(c) the effect of any development on amenity including the external appearance of the development in so far as this affects amenity;
(d) the character, location, bulk, scale, size, height and density of any development;
(e) the social and the economic aspects of the matter;
(f) the size and shape of land which is proposed to be developed, the siting of any building or works thereon, and the area to be occupied by any development;
(g) whether land is unsuitable for development by reason of its being, or being likely to be, subject to flooding, tidal inundation, subsidence, slip, bush fire, earthquake, volcanic eruption, or to any other risk whether natural or man made;
(h) the relationship of any development to any development on adjoining land or on other land in the locality;
(i) whether the proposed means of entrance to and exit from any development, and from the land on which any development is to take place, are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles within any development or on any land;
(j) the amount of traffic likely to be generated by any development, particularly in relation to the capacity of the road system in the locality and the probable effect of that traffic on the movement of traffic on that road system;
(k) whether public transport services are available and adequate;
(l) whether utility services are available and adequate;
(m) the landscaping of the land on which development is proposed and whether trees on the land should be preserved;
(n) representations made by a public authority in relation to the development of an area, and to the rights and powers of that public authority;
(o) representations on physical planning grounds made by a member of the general public;
(p) policy directives given by the Minister or a provincial minister provided that such directives may not conflict with any other provisions of this Act;
(q) whether any development will affect the approach to an aerodrome or aeronautical navigation aids or any other civil aviation facilities;
(r) whether any development will affect the operation of a port;
(s) an approved plan for education prepared under Division II.2 Part 2 Division (2) of the Education Act 1983;
(t) any approved plan for health;
(u) the mineral resources of land whether proven or potential; and
(v) any other matters which can be considered reasonably relevant to physical planning.

13.	This provision in mandatory terms prescribes what the appropriate authority shall consider on physical planning matters that cannot for all intent and purpose be ignored or overlooked. It would be an error of law on the part of the relevant authority to bypass or overlook the matters prescribed by this provision when some one applies for planning permission for vacant government land to creates new state leases or subdivide existing State leases. 

14.	In the present case it appears the National Physical Planning Board relied only on the recommendation for approval by the Advisor for Provincial Lands and Physical Planning, a survey plan of part portion 226 town of Wabag authored by Vaki Vailala, his survey report costs and site inspection report on part portion 226 by Eric Hinome to grant planning permission to the first defendant. There is no evidence that matters prescribed by s 5 of the Physical Planning Act were contained in the reports or considered by the Board before granting planning permission.  

15.	Despite the niggling doubt the new state leases were created from vacant government land according to the various maps tendered into evidence. The maps appear to be consistent with each other. 

16.	Therefore, any issue relating to subdivisions is of no relevance as subdivision issues ride on the back of existing state leases and not vacant government land as in the present case. 

17.	Having found that the new state leases were created from vacant government land the next issue is whether the new state leases were properly created and granted to the first defendant.  

B.	WHETHER STATE LEASES PROPERLY CRETATED?

18.	It is undisputed that the First Defendant applied for planning permission and at the same time engaged a private surveyor to survey two separate pieces of State land. After obtaining planning permission the survey plan was used to create new state leases for commercial purposes. Relevant approvals were given, including exemption from advertising the two lands for the State leases to be created and given to the First Defendant. Under the circumstances it invites a consideration of the law governing State leases.  
 
State Leases

19.	The law on State leases is guided principally by the Land Act and implemented through the Land Registration Act and the Physical Planning Act.  Pursuant to s 65 of the Land Act only the Minister may grant a state lease. This provision states,

65.	 GRANT OF STATE LEASES.

The Minister may grant State leases of Government land as provided by this Act.

20.	In exercising the power provided by s 65 of the Land Act the Minister can grant a state lease either on the recommendation of the Land Board pursuant to s 71 (b) or by direct grant pursuant to s 72 of the Land Act respectively. As a general rule it is the Land Board that considers all applications for grant of State leases pursuant to s 57 (2).

57.	FUNCTIONS OF THE LAND BOARD.
(1) ...
(2) Except where the Minister is empowered by this or any other Act to make a direct grant of a State lease, the Land Board shall consider all applications for grant of leases which have been investigated and referred to it by the Department and all other matters that are remitted to it by the Minister for its consideration.

21.	It is also a mandatory requirement Pursuant to s 67 of the Act that a State lease shall not be granted for a purpose that would be in contravention of zoning requirements under the Physical Planning Act or any other law relating to physical planning, or any law relating to use, construction or occupation of buildings or land. This provision is in the following terms.

67.	STATE LEASES NOT TO BE INCONSISTENT WITH ZONING, PHYSICAL PLANNING, ETC.

A State lease shall not be granted for a purpose that would be in contravention of zoning requirements under the Physical Planning Act 1989, any other law relating to physical planning, or any law relating to the use, construction or occupation of buildings or land.

22.	In the present case it is undisputed that the National Physical Planning Board granted planning permission to the first defendant for rezoning to commercial leases on the recommendation of the Advisor for Provincial Lands and Physical Planning, site visit reports and case reports from which the two state leases were created. 

23.	However, the application for planning permission by the first defendant and the grant of planning permission by the National Physical Planning Board appear to be ultra vires the powers given to the Provincial Physical Planning Board by s 28 (1) and s 76 (1) (a) of the Physical Planning Act. These provisions when reproduced state.

28.	 FUNCTIONS OF A PROVINCIAL PHYSICAL PLANNING BOARD.

(1)	A Provincial Physical Planning Board is empowered to consider and determine all physical planning matters primarily of provincial interest within the province concerned.

(2)	Where any matter is primarily of national interest, as defined in Section 4, the Provincial Physical Planning Board shall refer the matter to the National Physical Planning Board for decision, and in doing so may advise the National Physical Planning Board of its views on the matter.

(3)	Where there is doubt as to whether a matter is primarily of national interest, a Provincial Physical Planning Board may consult with the National Physical Planning Board and in the event of disagreement the matter shall be dealt with in accordance with Section 4.

(4)	Where a Provincial Government is suspended and an administrator is appointed, the Provincial Physical Planning Board shall continue to operate unless it also has been suspended.

24.	This provision vests power on the Provincial Physical Planning Board to consider and determine all physical planning matters primarily of provincial interest within the province. 

25.	Since the lands the subject of the application for planning permission by the first defendant were lands in the Enga Province it was the Enga Provincial Physical Planning Board who was empowered to consider the first defendants’ applications for planning permission in the first instance pursuant to s 76 of the same Act and no one else. Section 76 states,

76. BOARD TO WHICH APPLICATION FOR PLANNING PERMISSION TO BE MADE IN THE FIRST INSTANCE.
(1) An application for planning permission shall be made in the first instance-
(a) where the development concerned is in a province and a Provincial Physical Planning Board has been established in that province and is not suspended – to that Provincial Physical Planning Board; or

(b) where the development is in the National Capital District -to the National Capital District Physical Planning Board; or

(c) where the development is in a province and no Provincial Physical Planning Board has been established or the Provincial Physical Planning Board is suspended – to the National Physical Planning Board.

((2) where a development straddles the boundary between-

(a) two or more provinces; or
(b) a province and the National Capital District

A separate application shall be made in respect of each province, and in respect of the National Capital District in accordance with subsection (1), and each application shall be accompanied by a statement specifying to which Boards application has been made.  
26.	This provision in mandatory terms prescribe where an application for planning permission should be made. An application for planning permission must be first made to the Provincial Physical Planning Board who must consider and give or refuse planning permission and no one else.  

27.	The only exceptions according to this provision are where the Provincial Physical Planning Board is under suspension or where there is no Provincial Physical Planning Board in a province. Only then can an application for planning permission can be made to the National Physical Planning Board. 

28.	In the present case it appears the first defendant failed to comply with the mandatory requirement under s 76 (1) (a) and instead made application to the National Physical Planning Board who granted planning permission also ultra vires the mandate given to the Provincial Physical Planning Board pursuant to s 76 (1) (a) of the Physical Planning Act.

29.	There is evidence that the Enga Provincial Physical Planning Board was existing at the time the application for planning permission was made by the first defendant. 

30.	According to the letter of recommendation for planning approval to the Chief Physical Planner dated 20 October 2008, the Provincial Advisor for Lands and Physical Planning gave the following reason: 

“Due to the Provincial Physical Planning Boards deference the client wish to take the proposed plan, supporting letter and application fee direct to your office”. 

31.	This letter is evidence that the Enga Provincial Physical Planning Board was in existence and not suspended at the time the first defendant made application for planning permission to the National Physical Planning Board. Deference by the Provincial Planning Board is not a valid reason to circumvent mandatory requirements under the Physical Planning Act. The Provincial Advisor for Lands and Physical Planning exercised a power that he did not have to recommend when it is the Provincial Physical Planning Board who is the only authority vested with the relevant powers pursuant to s 28 (1) and 76 (1) (a) of the Physical Planning Act.  

32.	By ignoring or overlooking the existence of the Provincial Physical Planning Board and making application to the National Physical Planning Board renders null and void any decision the National Physical Planning Board made in respect of the first defendants’ application for planning permission as ultra vires the authority vested in the Provincial Physical Planning Board by virtue of s 28 (1) and 76 (1) (a) of the Physical Planning Act.

33.	The Provincial Physical Planning Board was the first right of call for physical planning matters of the province and not the National Physical Planning Board. The consequential effect of this summation is that it infects all decisions from the grant of planning approval itself to the grant of state leases to the first defendant. 

34.	Secondly, the planning permission given by the National Physical Planning Board is also legally flawed when there is no evidence that physical planning matters prescribed under s 5 were properly considered by the National Physical Planning Board.  There is no evidence to support the assertion by the first defendant that a detailed proposal was made by the Provincial Planning Division in support of his application for planning permission. 

35.	As intimated earlier it appears the National Physical Planning Board relied only on the recommendation for approval by the Advisor for Provincial Lands and Physical Planning, a survey plan of part portion 226 town of Wabag by Vaki Vailala, his survey report costs, and a site inspection report on part portion 226 by Eric Hinome to grant planning permission to the first defendant. 

36.	By doing so it facilitated the creation of two state leases with land on both sides of a creek. There is no evidence of how the new state leases can reconcile with Physical Planning matters prescribed by s 5 of the Physical Planning Act in respect of Wabag town planning.

37.	Under the circumstances the only conclusion is that the planning permission given by the National Physical Planning Board is in direct breach of s 5 of the Physical Planning Act rendering the grant of planning permission null and void and of no effect. Consequently, all decision that followed thereafter to the registration of title are infected and are equally void and of no effect. 

38.	It would be remiss of the Court if it does not make mention of another pertinent fact that stands undisputed.  

39.	The undisputed fact is that after the two state leases were created the delegate of the Minister on 25 January 2010 exempted the two state leases from advertisement. Thereafter the National Land Board granted the two state leases to the first defendant.  The decision by the delegate of the Minister to exempt from advertising the two newly created state leases also appear to be legally flawed. 

40.	Pursuant to s 68 of the Land Act, the Department Head has a mandatory duty to give notice by advertising all lands available for leasing. The only exceptions are those lands the Minister exempts from advertising pursuant to s 69. 
Even then the discretion of the Minister to exempt land from advertising is limited to the purposes prescribed under s 69 (2) of the Land Act. Section 69 states:

69.	 DUTY TO ADVERTISE STATE LEASES.

(1)	A State lease shall not be granted without first being advertised in accordance with Section 68 unless the land has been exempted from advertisement under Subsection (2).

(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.

41.	The combined effect of these provisions is that the Minister has no power to exempt from advertising State leases for reasons outside the purposes prescribed under this provision.  It serves a very important purpose of being transparent in the allocation of State leases which the Minister cannot just ignore. The Supreme Court in the case of JNS Limited v Lae Builders & Contractors Ltd [2015]SC1552 said this of the necessity to advertise state leases available for granting. 

“The content and directive of the Act plainly demonstrates that the intention and purpose of the Act is to provide an open and transparent system of access to state lands, and an orderly and fair process of disposition of those lands by the Minister on behalf of the State. Citizens, given due and adequate notice as to the availability of State land are able to compete on an equal footing with one another by public open tender for state leases”.
42.	The purpose of the requirement to advertise state land available for lease is plain and unequivocal. It is attached with fairness and transparency. The Minister or his delegate cannot merely renege on the mandatory duty imposed by s 69. 

43.	In the present case the Delegate of the Minister by notice dated 25 January 2010 exempted from advertising the newly created State leases for Allotment 4 Section 11 and Allotment 2 Section 36 pursuant to s 69 (2) (d) of the Land Act. The reason given for the exemptions is in the following terms: “The special reason attached to this notice that the land applied by Peter Wakal had met all necessary requirements of the Department by applying through Physical Planning Board and Survey section and was approved respectfully”. 

44.	The attachment referred to is a minute from one Vele Serek an unattached Land Allocation Officer. The minute states that the concerned applicant had put a lot of money, time and other resources for developing them into potential commercial land and therefore is insisting for land to be exempted from the advertisement. A footnote on the same document states, “the applicant at his own cost made this land available to enable the land be available for business activities”. 

45.	Costs incurred to develop vacant land as a reason to grant an exemption is also inconsistent with s 69 (2) (d) the provision relied on by the Delegate of the Minister to give the exemption. 

46.	This provision provides that the Minister can exempt from advertising land “where the State has agreed to provide land for the establishment or expansion of a business, project, or other undertaking”.

47.	This provision has been misconstrued when the Delegate of the Minister granted exemption from advertising the two lands for incurring expenses to do prior development on the two lands which is not a valid reason prescribed under s 69 (2). Furthermore, there is no evidence of any agreement with relevant authorities of the State to provide land to the first defendant to establish or expand any business, project or other undertaking as required by s 69 (2) (d) of the Land Act. 

48.	There appears to be present an element of constructive fraud on the part of the Delegate of the Minister when it granted exemption from advertising two State leases for reasons not prescribed under s 69 (2) of the Land Act. Therefore, the exemption given by the Delegate of the Minister is on the face of the record unlawful and invalid for being infected by a reason not prescribed by s 69 (2) of the Land Act.  

49.	The effect of the forgoing conclusions is that the failure by relevant authorities to comply with mandatory provisions of the Land Act and the Physical Planning Act respectively renders the state leases created and given to the first defendant voidable. The plaintiff’s claims are therefore sustained and the orders sought therefrom are granted as stated in the formal orders.  

Formal Orders;

1.	It is declared that State leases in respect of Section 36 Allotment 2 and Section 11 Allotment 2 are void ab initio for being unlawfully created, registered and issued to the First Defendant. 

2.	The First Defendant shall immediately surrender to the Registrar of Titles the registered titles issued to him in respect of section 36 Allotment 2 and Section 11 Allotment 2 of Wabag town for cancellation.

3.	The Registrar of Titles shall take immediate steps to cancel the titles registered and issued to the First Defendant in respect of land on Section 36 Allotment 2 and Section 11 Allotment 2. 

4.	The First defendant is at liberty to properly apply afresh for planning permission to the relevant authority. 

5.	The Plaintiff shall be entitled to the costs of this proceeding which shall be borne on a 50/50 basis between the First Defendant on the one part and the Second and Third Defendants on the other part on a party/party basis to be agreed if not taxed. 

Lawyers for the plaintiff:	M.S. Wagambie Lawyers	
Lawyers for the second and third defendants: MaCKenzie Lawyers