N11364

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 320 OF 2013

BETWEEN:
YANGGA TREPPE ON BEHALF OF HIMSELF AND THE NAMED PERSONS LISTED IN THE CONSENT TO ACT
First Plaintiff

AND:
THOMPSON RURI
Second Plaintiff

AND:
BRUCE MAMANDO
First Defendant

AND:
ROMILY KILA PAT- ACTING LANDS SECRETARY
Second Defendant

AND:
HON. BENNY ALLAN MP- LANDS MINISTER
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

WAIGANI: COATES J
9 JULY 2025

CUSTOMARY LAND – Ownership – Lands Title Commission - compensation 

ABUSE OF PROCESS - National Court hearing a land dispute matter - Section 26 Land Disputes Settlement Act- confirm ownership or fresh hearing – 

Cases cited
Ikian Lyanga v The Independent State of Papua New Guinea SC1635
Siu v Wasime Land Group Incorporated [2011] PGSC 4; SC1107
Victor Golpak v Patrick Alongrea Kali, Alois Malori, Simon Kali, Felix Siname, Mumore Pty Ltd, And Niugini Lumber Merchants Pty Ltd [1993] PNGLR 491
In the Matter of Tumu Timbers Development Limited (1-22269) (2025) N11232
Ronny Wabia v BP Petroleum Explorations Operating Co. Limited & 2 Ors [1998] PNGLR 8

Counsel
J Kumura, for first plaintiff 
G Lau, for second plaintiff
J Be'soer, for the plaintiffs in the interim
 P Othas, for first defendant
G Akia, for second, third & fourth defendants 

DECISION

1.	COATES J: This case concerns a dispute over customary land ownership and compensation related to Portion 178, Milinch Ramu, Fourmil Baiyer, Western Highlands Province (WHP). ​The land is situated where the Kwinkyer Primary School is now located in Baiyer, WHP. 

2.	These proceedings raise critical issues concerning the jurisdiction of the National Court in matters relating to customary land, the admissibility of historical determinations by the Land Titles Commission (LTC) and Local Land Courts (LLC) and competing claims to land ownership under customary law.

3.	 The first plaintiff, Yangga Treppe, claims ownership of the land based on decisions by the LTC and the LLC. ​ The defendants challenge the jurisdiction of the National Court to hear the matter, citing Section 26 of the Land Disputes Settlement Act 1975 (LDSA), which restricts the National Court from adjudicating disputes over customary land ownership. 

4.	This decision adopts the procedure followed in Ikian Lyanga v The Independent State of Papua New Guinea (2017) SC1635, for the delivery of judgment in circumstances where the trial judge has become incapacitated or has died. 

5.	His Honour Justice Lindsay (Lindsay J) heard this matter on Thursday 8 September 2016, at the Mt Hagen National Court. 

6.	He died before he could deliver his decision. 

7.	As required by the Lyanga decision, on Thursday 20 February 2025, I heard this matter at the Wabag National Court, Enga Province, where I raised with counsel whether a new hearing was being sought or whether parties gave consent for me listening to the recording or reading the transcript, with of course the filed material relied on, to deliver judgment. 

8.	I also sought any new evidence or submissions.

9.	The counsel agreed that I should proceed to listen to the recording or read the transcript and court file and then deliver judgment.

ISSUES

10.	This decision raises several issues. The key issues are: 

a)	whether the National Court has jurisdiction to determine disputes over customary land ownership;
b)	whether the proceedings should be dismissed as an abuse of process; 
c)	whether the first plaintiff's amended originating summons sufficiently addresses the jurisdictional concerns; and
d)	Whether summary judgment should be granted to the second plaintiff.

11.	Regarding the National Court's jurisdiction to determine disputes over customary land ownership, the first plaintiffs argue that the First Defendant and Second Plaintiff never raised this threshold legal issue, and that it was only raised at a later stage in the proceedings. The first plaintiff claims this matter is properly before the Court.
ARGUMENTS​
12.	The First Plaintiff, Yangaa Treppe, commenced proceedings for himself and on behalf of six other persons, filed on 13 June 2013. The Originating Summons filed on 13 June 2013 sought various reliefs in the form of the following declarations:

a)	A declaration that the first defendant and his clan are not the customary landowners of Portion 178; 
b)	A declaration that the plaintiffs are the rightful customary landowners of Portion 178; and
c)	A declaration that the plaintiffs are entitled to receive compensation from the Department of Lands under its Customary Land Acquisition Programme over Portion 178. 

13.	In the hearing before Lindsay J, on 8 September 2016, the first defendant argued that the National Court lacks jurisdiction under Section 26 of the LDSA, as the matter involves customary land ownership. He sought dismissal of the proceedings, asserting that the dispute should be resolved in the appropriate forum, such as the Local Land Court. ​

14.	The First defendant, Bruce Mamando, filed an application on 20 July 2016 seeking to dismiss the entire proceedings as being frivolous, vexatious, and an abuse of process in the National Court. This application is made pursuant to Order 12, Rule 40(1)(a) and (c) of the National Court Rules, Section 62 of the LDSA, and Section 155 (4) of the Constitution.

15.	The second plaintiff, representing the Kepo, Lepo and Kandaso clans (KLK clans), conceded that the National Court lacks jurisdiction to determine customary land disputes. ​ However, he raised concerns about the validity of the first plaintiff's evidence, including LTC decisions and Local Land Court orders. He suggested that the matter should be referred to the proper forum.

16.	The first plaintiff argued that the National Court has jurisdiction to confirm ownership based on prior LTC and Local Land Court decisions, rather than determining ownership anew. ​ He emphasised that the ownership of the land had already been established through these decisions, which were never seriously challenged by the second plaintiff and the first defendant. 

17.	The gist of the first defendant's submissions was that the land in dispute, Portion 178, is customary land that has not been acquired by the State, ownership proven through LTC and LLC decisions allowing the National Court jurisdiction to deal with the question of who is entitled to receive payments over the land in dispute. 

18.	Based on the evidence, the first plaintiff relied on affidavits and annexures, including LTC decisions from 1955, 1971, and 1973, as well as a Local Land Court order from 1981. The defendants questioned the validity of these documents, particularly the absence of a Local Land Court seal on some annexures. 

LEGAL FRAMEWORK & ANALYSIS

19.	Turning to jurisdictional limitations, it is apparent that despite the first plaintiff's attempt to frame the action as a "confirmation" of previous determinations (from the LTC and Local Land Court), the substance of the proceedings invites the Court to revisit and weigh ownership rights under customary law which is not permitted under Section 26 of LDSA. 

20.	Section 26 of the Land Disputes Settlement Act (Chapter No. 45) expressly excludes the National Court from adjudicating matters "relating to, or in connection with, the ownership or usage of customary land."

21.	In Siu v Wasime Land Group Incorporated [2011] PGSC 4; SC1107, in para. 5 the Court held that the National Court has no jurisdiction over primary customary land disputes or interests in customary lands. This case further applied principles in Victor Golpak v Patrick Alongrea Kali, Alois Malori, Simon Kali, Felix Siname, Mumore Pty Ltd, And Niugini Lumber Merchants Pty Ltd [1993] PNGLR 491and Ronny Wabia v BP Petroleum Explorations Operating Co. Limited & 2 Ors [1998] PNGLR 8. 

22.	In Para. 6 in Siu, the Court further states that:

“any proceeding seeking declaratory reliefs and court recognition of various interests in customary land from which they stand to derive monetary benefits or any other benefits including financial and any other physical benefits amounts to an abuse of court process because it does not in any way disclose a reasonable cause of action.”

23.	In Victor Golpak v Patrick Alongrea Kali, Alois Malori, Simon Kali, Felix Siname, Mumore Pty Ltd, And Niugini Lumber Merchants Pty Ltd [1993] PNGLR 491, Justice Doherty highlighted even where prior determinations exist, the question is whether the current proceeding merely "confirms" or "redetermines" ownership. Doherty J cited also cited Section 26 and Section 29 of the LDSA, on the general jurisdiction of the LLC and dispute settlement, as well as Section 31. As with that case, Section 31 is most relevant in these circumstances. Section 31 of the LDSA states that ‘all proceedings in a Local Court will be commenced by an application to a Magistrate of a Local Land Court or a Local Land Magistrate’. I find that in this situation also, neither of these includes a judge of the National Court.

24.	I agree with the position taken by Doherty J. The LDSA was clearly intended to keep matters of customary land—particularly those involving succession and ownership—within the bounds of customary processes. The legislation draws a line that the National Court should not cross. To make declarations about what amounts to an interest in customary land would disregard that intent. It would not only exceed the Court’s proper role but also undermine the purpose for which the law was enacted.

25.	In Order 8 Rule 51, the National Court Rules permits amendments to the originating process; however, such amendments cannot invoke jurisdiction where the Court has none ab initio.

26.	These cited cases make it clear that if an action requires the determination of rights in customary land, it falls outside the National Court's remit, regardless of how it is framed.

27.	The first plaintiff's reliance on LTC decisions from 1955, 1971, and 1973, as well as the 1981 Local Land Court order, does not negate the fact that the underlying question is one of customary ownership.

28.	The argument by Mr Kumura that the matter is one of confirmation rather than determination fails. In Golpak, the Supreme Court held that even confirmation requires assessment of underlying custom, which is prohibited.

29.	The second plaintiff's claims likewise fall into the same prohibited category, despite framing their case as based on admissions or compensation. In summary, The Court cannot be invited to do indirectly what it is prohibited from doing directly.

Abuse Of Process

30.	As to abuse of process, the first defendant is correct in asserting that the use of the National Court to resolve what is fundamentally a customary land dispute amounts to an abuse of process. The Court's time should not be expended on matters over which it lacks jurisdiction.

31.	His Honour Anis J said in In The Matter Of Tumu Timbers Development Limited (1-22269) (2025) N11232, that the ‘Court has a duty to protect its process from being abused by litigants’, citing Gadigi v Logae (2021) SC2102, Michael Newall Wilson v Clement Kuburam (2016) SC1489, Application by Anderson Agiru (2002) SC686 and Traisa Transport Ltd v Mountain Property Holdings Ltd and Ors (2024) N10694 (Traisa Matter). His Honour quoted the Traisa matter at para. 24, where the Court said:

“…Matters concerning abuse of process may be raised at any stage of a proceeding including at a trial of a matter. If a law has been broken or a process has been abused, Courts must not turn a blind eye or ignore the law when the matter is brought to its attention or upon its discovery. Courts also have a fundamental role to protect its process from being abused.  See cases:  Michael Wilson v Clement Kuburam (2016) SC1489, Breckwoldt & Co. (N.G.) Pty v Gnoyke [1974] PNGLR 106, PNG Forest Products and Inchcape Berhad v The State & Jack Genia, Minister for Forests [1972] PNGLR 85 and NAE Limited (1-21320) v Curtain Bros & Ors (2015) N6124.”

32.	I note that counsel for the first defendant, Mr Othas used the word ‘enquire’ in his statements regarding the second issue he put to the court. As a side note, I stress that the Court does not simply enquire into matters rather it decides issues. 

Amendment to Originating Summons

33.	Turning to the first plaintiff's amendment to the originating summons, I reason that the amendment does not cure the defect. Jurisdiction cannot be conferred by clever pleading or reframing. No matter how the relief is couched, the substance involves adjudicating customary rights.

34.	As to validity of historical documents, while arguments were advanced about the validity of documents (PM1, PM5, PM6), including the absence of seals and whether certain parties were part of historical proceedings, these are evidentiary matters the Court cannot engage with because it lacks jurisdiction to determine ownership – the very purpose for which the documents were tendered.

Application for Summary Judgment

35.	Now, regarding the second plaintiff's application for summary judgment, the application by the second plaintiff seeking summary judgment based on purported admissions is untenable. Even if there were concessions regarding their historical occupancy, the matter still concerns ownership of customary land – the threshold bar of jurisdiction has not been overcome. Furthermore, the Court is unable to order compensation payments into its trust account when it is unable to resolve the underlying ownership issue.

CONCLUSION

36.	Therefore, with the first issue, I find that the National Court has no jurisdiction to hear and determine the substantive dispute, as it involves customary land ownership, which is prohibited by Section 26 and left out by Section 31of the LDSA.

37.	In the second issue, I find that this case is fundamentally a customary land dispute with its interests and as such this Court cannot arbitrate and amounts to an abuse of court process. 

38.	For the third issue, it is also clear that the amended originating summons does not cure the jurisdictional defect.

39.	In the fourth issue, the second plaintiff’s application for summary judgment cannot succeed. 

ORDERS 

1.	The first defendant's application to dismiss is upheld.

2.	The second plaintiff's application for summary judgment is dismissed.

3.	The proceedings are dismissed in their entirety.

4.	Costs are awarded to the first, second, third, and fourth defendants, to be taxed if not agreed.

5.	The plaintiffs are at liberty to pursue their respective claims in the appropriate customary land dispute resolution forums established under the Land Disputes Settlement Act.

Orders accordingly

Lawyers for first plaintiff: Kumura Lawyers
Lawyers for second plaintiff: Niuage Lawyers
Lawyers for plaintiffs in the interim: Jack Be’soer Lawyers
Lawyers for first defendant: Paul Othas Lawyers
Lawyers for second, third & fourth defendants: Akia & Associates Lawyers