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Lole v Kapanombo [2025] PGNC 244; N11405 (13 June 2025)

N11405

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS(JR) NO. 38 OF 2025 [IECMS]

BETWEEN:
HOWARD LOLE in his capacity as the appointed Chairman for YUGUCLAN, TUGUBU BLOCK 1, HIDES PDL 1
Applicant

AND:
AUGUSTINE KAPANOMBO in his capacity as the Registrar for Incorporated Land Groups
First Respondent

AND:
MAI HIYABE
Second Respondent

AND:
YUGU LAND GROUP INCORPORATED (REG ILG NO. 1864)
Third Respondent

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

AND:
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fifth Respondent

WAIGANI: DINGAKE J
13 JUNE 2025

JUDICIAL REVIEW – application for leave for judicial review – applicant seeks review of decision of first respondent - decision subject of review relates to issuance of Certificate of Incorporation to Third Respondent under the Incorporated Land Groups Act 1974 – threshold issue raised by Respondent is whether Appellant has locus standi to bring proceedings - test for leave to apply for judicial review well settled – consideration of - Applicant, as Chairman of an unincorporated clan, lacks requisite legal standing under Section 11 of Land Groups Incorporation (Amendment) Act 2009 to bring proceeding - application for leave to apply for judicial review dismissed for want of standing - Order 16 Rule 3 of the National Court Rules.

Counsel
Ms. Belinda Poki, for the applicant
Ms. Gabrielle Dusava, for the respondents

1. DINGAKE J: INTRODUCTION: This is a ruling on an application for leave to apply for judicial review pursuant to Order 16 Rule 3 of the National Court Rules.
   
2. The Appellant, in his capacity as Chairman of the Yugu Clan, Tuguba Block 1, Hides PDL 1, seeks leave to review the decision of the First Respondent made on 7 October 2024.
   
3. The decision relates to the issuance of a Certificate of Incorporation to the Third Respondent under the Incorporated Land Groups Act 1974, as amended by the Land Groups Incorporation (Amendment) Act 2009.
   
4. At the hearing of the leave application, the only issue raised by the Respondent is whether the Appellant has standing locus standi to bring these proceedings. The Court is now required to determine this threshold issue.
   

THE ISSUE

4. The sole issue before the Court is:

Does the Plaintiff have sufficient interest locus standi to bring this application for judicial review? If not, what is the appropriate order the Court should make?

PLAINTIFF’S POSITION

5. The Applicant argues that he has a sufficient interest in the subject matter of the decision as Chairman of the Yugu Clan, whose customary land interests are affected by the incorporation of the Third Respondent.
   
6. He submits that even though the Yugu Clan is not an Incorporated Land Group (ILG), he retains a sufficient personal and direct interest in the subject matter to ground standing for the purposes of judicial review.
   
7. The Applicant further submits that, in the event the Court finds that he lacks locus standi due to the absence of formal clan authority or legal status as an ILG, the Court should not dismiss the application outright but allow him the opportunity to remedy the defect. In support, the Applicant relies on case of Alex Bernard v Hon. Nixon Duban, MP, Minister for Department of Petroleum & Energy; (2016) PGNC 121; N6299.
   

RESPONDENTS’ POSITION

8. The Respondents, on the other hand, submit that the Applicant does not have standing under the relevant legislation. They rely on section 11 of the Land Groups Incorporation (Amendment) Act 2009, which requires that any group purporting to assert rights over customary land must be incorporated as an ILG to bring proceedings.
   
9. They cite the National Court decision in Foe Association Inc and Yawari v Manau and Others (2023) PGNC 349; N10423, which affirmed the principle that only incorporated groups have legal standing under the ILG regime.
   
10. The Respondents further argue that if the Applicant is pursuing the matter as a representative action, he has not demonstrated the requisite authority from the clan members as required under Simon Mali v The State (2002) SC690.
    
11. They contend that absence of standing is fatal and cannot be cured post-filing. Consequently, the application for leave should be dismissed outright.
    

THE LAW

12. The test for leave to apply for judicial review is well settled. The Applicant must demonstrate:
    
    • (i) an arguable case;
    • (ii) that the decision is amenable to judicial review;
    • (iii) that there is no alternative remedy;
    • (iv) that the application is brought within time;

and critically,

(v) that the Applicant has sufficient interest or locus standi.

13. Section 11 of the Land Groups Incorporation (Amendment) Act 2009 provides that customary land may only be held and dealt with by incorporated land groups. It follows from this statutory scheme that legal personality for the purpose of asserting interests over customary land lies only with such incorporated groups.
    
14. The decision in Foe Association Inc (supra) clearly affirms that an unincorporated group or individual purporting to act on behalf of an unincorporated clan has no standing to bring such proceedings.
    
15. Where proceedings are brought as representative actions, the principles in Simon Mali v The State require proper evidence that the Applicant has the authority of the group to act on their behalf.
    
16. While the Court in Bernard v Duban (2016) permitted an applicant to rectify procedural defects relating to authority, the facts of that case are not the same as those of this case.
    

ANALYSIS

17. In this case, it is common ground that the Yugu Clan is not an Incorporated Land Group. The Applicant purports to act on behalf of this unincorporated clan.
    
18. Under Section 11 of the Land Groups Incorporation (Amendment) Act 2009, the right to deal with customary land and to participate in decisions affecting land is conferred only upon ILGs. Therefore, the Applicant lacks the legal capacity to bring this proceeding in his personal capacity or as Chairman of an unincorporated group.
    
19. The Applicant has not provided any documentary evidence of formal authority from the members of the clan to act in a representative capacity, as required by Simon Mali (supra).
    
20. The Applicant reliance on Bernard v Duban is distinguishable. This case involves a statutory regime that expressly limits legal standing to incorporated entities. The defect in standing here arises from a fundamental lack of legal capacity, not a mere procedural irregularity.
    
21. The Court agrees with the Respondents’ submission that standing is a threshold requirement. If the Applicant has no locus standi, the matter must end there. It is not a curable defect in this context.
    

CONCLUSION

22. The Applicant, as Chairman of an unincorporated clan, lacks the requisite legal standing under Section 11 of the Land Groups Incorporation (Amendment) Act 2009 to bring this proceeding.
    
23. He has also failed to demonstrate that he has proper authority to act in a representative capacity for the clan.
    
24. The defect in standing is fatal and cannot be remedied post-filing in the circumstances of this case.
    

ORDERS

25. Accordingly, the Court makes the following orders:
    
    1. The application for leave to apply for judicial review is dismissed for want of standing.
       
    2. Costs are awarded in favour of the Respondents, and against the Applicant, and such costs to be agreed or taxed.

________________________________________________________________
Lawyers for the applicant: Warner shand Lawyers
Lawyer for the respondents: Solicitor General