N11493

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO.  100 OF 2024

BETWEEN:
TOWANGOLA LAND GROUP INC (ILG 1390)
First Plaintiff

AND:
KIKELAM LIVI, CHAIRMAN OF THE TOWANGOLA LAND GROUP INC (ILG NO 1390)
Second Plaintiff

AND:
GEORGE MANASE
Defendant

LAE: DOWA J
9 OCTOBER, 5 DECEMBER 2024; 22 SEPTEMBER 2025

PRACTICE AND PROCEDURE– Appropriate mode of Originating Process-Application for declaratory orders – Order 4 Rules 3 – National Court Rules – Competency of the proceedings-Originating Summons not appropriate where there is substantial dispute of facts- Reliefs sought refused-Court issued alternative orders for resolution of dispute between the parties.

 Cases cited
Masive v Okuk & Kenderop [1985] PNGLR 105 
Tin Siew Tan v PNG Electricity Commission (2002) SC683 

Counsel
M Karu, for the plaintiffs
E Watta, for the defendant

DECISION

1.	DOWA J:	 The Plaintiffs are seeking various declaratory and consequential orders for recognition and affirmation of its interest as an incorporated land group of Towangola village, Mumeng District, Morobe Province.

2.	By Originating Summons, the Plaintiffs seek the following declaratory and   consequential injunctive orders:
	
1.	 That Towangola Land Group Inc. with Certificate No 13026 has ceased to exist by virtue of Section 36 of the Incorporated Act 2009

2.	That the second Plaintiff is the legitimate Chairman of the first Plaintiff and will make representations on behalf of the first Plaintiff and its members to the Wafi/Golpu mine and any other entities on behalf of the first Plaintiff.

3.	That the Defendant does not have standing as an officer of the first Plaintiff.

4.	That as a result cannot make representations or receive any benefits or entitlements that are due or that may become due from Wafi/Golpu mine or other entities
5.	….
6.	Costs of the proceedings
…..

Background Facts

3.	The proceedings concern leadership dispute over Towangola Land Group of Towangola village, Mumeng District in the Morobe Province. The first Plaintiff, Towangola Land Group Inc No 1390 (TLG 1390) is led by the second Plaintiff, Kikelam Livi. The Defendant, George Manase, leads the Towangola Land Group Inc No 10326 (TLG 10326).

4.	TLG 10326 was incorporated under the Land Groups Incorporation Act in October 2004. The second Plaintiff, Kikelam Livi, was the Deputy Chairman. According to the second Plaintiff TLG 10326 ceased to exist by virtue of an amendment done to the Land Groups Incorporation Act with the addition of Section 36. The second Plaintiff proceeded to apply for the incorporation of TLG 1390 which was incorporated on 15th June 2021.

 5.	Meanwhile the Defendant and other committee members applied for the renewal of TLG 10326. The application was lodged in 2019 and were awaiting approval and certification. The Defendant continued to represent the interests of TLG 10326 without realising that the second Plaintiff has incorporated TLG 1390.

6. 	It has become problematic with both representatives of TLG 10326 and TLG 1390 holding themselves out as genuine representatives of Towangola Land Group. This resulted in the current proceedings.

Trial and evidence

7	The facts were substantially disputed requiring examination of the deponents to the affidavits filed by the parties. 

The Plaintiff’s claim

8	The Plaintiffs submitted that: TLG 10326 ceased to exist by virtue of Section 36 of the Land Groups Incorporated Act. On cessation of TLG 10326, the second Plaintiff proceeded to register TLG 1390.  The second Plaintiff says he is now the legitimate Chairman of Towangola Land Group Inc., and that the Defendant, George Manase, does not have standing as officer of the first Plaintiff. The Plaintiffs seek an order that the Defendant be restrained from making representations to or receive any entitlements that are due from Wafi/Golpu mine or other entities.

The Defendant’s Response

9.	The Defendant, on the other hand, submitted that the Plaintiff’s proceeding be dismissed for the following reasons:

i.	Disclosing no reasonable cause of action, 
ii.	That the second Plaintiff, Kikelam Livi, does not have standing to bring this action
iii. 	That TLG 10326 is the sole legitimate corporate body for Towangola Land Group 
iv.	That the second Plaintiff is not the leader for Towangola Land Group
v.	TLG 1390 was a duplicity of TLG 10326 registered by the second Plaintiff personally without the consent and authority of the members of Towangola Land Group. 
vi.	The TLG 1390 was registered while TLG 10326 was still current.

Issues

10.	The main issues for consideration are:

a.	Whether the proceedings are competent
b.	Whether TLG 10326 ceased to exist by virtue of section 36 of the Land Groups Incorporation (Amendment) Act 2009
c.	Whether the second Plaintiff is the legitimate Chairman of TLG 1390
d.	Whether the Defendant has standing to represent the Towangola Land Group/owners.

a.	Preliminary Competency Issues. Whether the proceedings are competent.

11.	I will deal with the preliminary competency issues first. The Defendant submitted that the second Plaintiff, Kikelam Livi, does not have authority to bring this action. The Defendant submitted that the second Plaintiff does not come from Towangola and does not represent the Towangola Land Group.  Despite the contention by the Defendant, the evidence shows the second Plaintiff is the Chairman of the TLG 1390 while the Defendant represents TLG 10326 as its chairman.  Both the second Plaintiff and the Defendant claim to represent Towangola Land Group Inc. The result there is a clear dispute between the leaders and members of the Towangola Land Group.

12	 Part V of the Land Groups Incorporation Act 1974, provides procedure for dispute settlement between an incorporated land group and a member of the group concerning the property or the affairs of the group, including income distributions and representation. Section 21 provides for the establishment of the Dispute-Settlement-Authority of the Land Group. Section 22 provides that all disputes shall be settled by the Dispute Settlement Authority in accordance with sections 23 and 24 or by a Court having jurisdiction under section 23. Section 23 is relevant, and it reads: 

“	23.	JURISDICTION OF COURTS.
(1) No court has jurisdiction over a dispute to which this Part applies unless–
(a) all parties agree that it should be referred to the court; or
(b) the constitution of the incorporated land group concerned so provides; or
(c) any relevant agreement between the group and a party so provides; or
(d) the dispute-settlement authority thinks that–
(i) it cannot satisfactorily settle the dispute; and
(ii) the court may be able to do so.
(2) The dispute-settlement authority has jurisdiction to decide any matter referred to in Subsection (1) and its decision is not open to challenge in any court.
(3) Where under Subsection (1) a dispute may be referred to a court–
(a) subject to Subsection (4), the court must be a Village Court or a District Court that has, apart from the effect of this Part, jurisdiction in the matter; and
(b) it shall be referred, in the prescribed manner, by the dispute-settlement authority; and
(c) the dispute-settlement authority is entitled to act, and if the court or a person interested so asks shall act, as an assessor on matters of custom and as to matters of common knowledge within the group, but–
(i) its advice shall be given in open court and is open to challenge; and
(ii) if for good reason the court thinks it proper to do otherwise, the court is not bound to accept the advice.
(4) For the purposes of Subsection (3)(a), each Village Court and each District Court has jurisdiction over disputes as to land (other than disputes as to registered interests in land).

13.	Turning to the present case, the dispute concerns leadership, representation and income distributions of Towangola land group represented by TLG 10326 and TLG 1390. 	These are disputes within the jurisdiction of the Dispute-Settlement Authority. The Plaintiffs have not presented any evidence of any resolution by the Dispute-Settlement Authority referring the matter to Court for determination under section 23 (1) (a) of the Act. There is no evidence of the parties to the dispute agreeing for the dispute to be resolved by the Court. Furthermore, there is no evidence of members of Towangola land Group passing a resolution authorizing the Plaintiffs to bring an action in the National Court against the Defendant, Chairman of TLG 10326. It appears this Court does not have jurisdiction to hear and resolve the dispute.

14.	The result the proceeding instituted by the Plaintiffs are incompetent and shall be dismissed.

15.	In case, I am wrong in my ruling I will proceed to deal with the merits of the claim.

b.	Whether TLG 10326 ceased to exist by virtue of Section 36 of the Land Groups Incorporation (Amendment) Act 2009

16.	The Plaintiff submits that TLG 10326 ceased to exist by virtue of section 36 of the Land Group Incorporated Act 2009.

17.	I note fatal errors in the pleadings. The Plaintiffs seek a declaratory order that TLG 10326 ceased to exist by virtue of section 36 of the Land Groups Incorporated Act 2009. I note this peace of legislation does not exist. The correct Act is Land Groups Incorporation Act as amended. The principal Act is Land Groups Incorporation Act 1974. It was first amended in 2009, with the addition of section 36 known as Land Groups Incorporation (Amendment) Act 2009. The second amendment was done in 2018 where section 36 was repealed and replaced with a new section 36 in the Land Groups Incorporation (Amendment) Act 2018.

18.	It is important to set out the amendments in full for clarity and easy reference.

i.	Land Groups Incorporation (Amendment) Act 2009

"36. SAVINGS AND TRANSITIONAL ARRANGEMENTS.

(1) On and from the coming into effect of this Act, all current and existing incorporated land groups incorporated prior to the coming into force of this Act shall on the coming into force of this Act be allowed to continue for a transitional period of 5 years only and that such incorporated land groups shall automatically cease to exist at the fifth anniversary from the date of effect of this Act.

"(2) Within the 5 years transitional period referred to in Subsection (1), all existing incorporated land groups shall apply for re-incorporation in full compliance of all the requirements of this Act.".

ii.	Land Groups Incorporation (Amendment) 2018

“REPEAL AND REPLACEMENT OF SECTION 36.

Section 36 of the Principal Act is repealed and replaced with the following:

"36. SAVINGS AND TRANSITIONAL ARRANGEMENTS.
All current and existing incorporated land groups that were incorporated prior to 27th February 2012, shall continue for a transitional period of 10 years only and that such incorporated land groups shall automatically cease to exist at the tenth anniversary of this date.".”
19.	While the pleading is ambiguous, the Plaintiffs seemed to argue that by virtue of section 36 of the 2009 amendment, TLG 10326 ceased to exist by 2014, at the fifth anniversary from the date of the amendment to the principal Act.
 
20.	The Defendant refuted the Plaintiffs’ allegations, deposing that TLG 10326 complied with the requirements of the Act during the transitional period as provided for by subsection (2) of the Land Groups Incorporation (Amendment) Act 2009 and continued to exist up to 2018. The second Plaintiff did not specifically refute the evidence of the Defendant. Rather he somewhat conceded when he deposed that he became caretaker Chairman of TLG 10326 in 2019 after the former Chairman passed away in 2018. The second Plaintiff stated further that TLG 10326 was still operating until he became aware of the 2018 amendment when he decided to take steps to re-register the Land Group which was eventually incorporated in June 2021 (TLG 1390).

21.	I find, from evidence by both parties, that TLG 10326 survived the 2009 amendment and continued to exist at the time of the incorporation of TLG 1390. 

22.	Collateral to the issue is the 2018 amendment. Although the Plaintiffs did not seek the relief under section 36 of the Land Groups Incorporation (Amendment) Act 2018, it relevant to bring it up for completeness. Section 36 of the 2018 amendment is clear. All land Groups incorporated prior to 2012, shall continue for a transitional period of 10 years only and thereafter shall automatically cease to exist at the tenth anniversary of this date. The last date for the cessation was 26th February 2022. It is clear TLG 10326 was still existing and current when TLG 1390 was incorporated on 15th June 2021. 

23.	It is noted that the facts and relief sought in the proceeding are not clear and coherent as envisaged by Order 4 Rule 3 of the National Court Rules. There is substantial dispute of facts. It has been held in Masive v Okuk and other (1985) PNGLR 105, that an application for declaratory order under Order 4 Rule 3 of the NCRs should only be used where there is no substantial dispute of facts. 
	
24.	In any case, to answer the question under consideration, there is no conclusive evidence that TLG 10326 ceased to exist by virtue of section 36 of the Land Groups Incorporation (Amendment) Ac 2009. Rather it continued to exist until the 2018 amendment which fixed the cessation date as of 26th February 2022.

c.	Whether the second Plaintiff is the legitimate Chairman of TLG 1390

25.	The second Plaintiff seeks declaration that he is the legitimate Chairman of TLG 1390. He submitted that he was voted Chairman by the members of TLG 10326 on 9th March 2019 and was given the authority to apply for the reregistration of the Towangola Land Group which was successfully incorporated on 15th June 2021. 

26.	The Defendant, on the other hand, submitted that the second Plaintiff is not the legitimate Chairman of Towangola Land Group in that:

i.	He was not elected Chairman by the members and executive of TLG 10326.
ii. 	He incorporated TLG 1390 without the authority and consent of the members of TLG   10326.
iii.	He is not a member of Towangola landowning clan.
iv.	He fraudulently replaced TLG 10326 with TLG1390 while TLG 10326 was still current.  
v.	There was no proper investigation by the ILG Registrar before TLG 1390 was incorporated.

27.	The Certificate of Incorporation of TLG 1390 shows the second Plaintiff as the Chairman of Towangola Land Group Inc, TLG 1390. His chairmanship is however questioned by the Defendant and two executive members of TLG 1390, namely Peter Bingwaku and Bing Ilaing. Messrs Bingwaku and Ilaing are also members of TLG 10326.The two executive members denied appointing the second Plaintiff as Chairman. They also denied authorising him to apply for the alternative registration of the Towangola Land Group. 

28.	On the other hand, the evidence shows the Defendant was voted Chairman of TLG 10326 on 9th January 2022 by the land group members of the TLG 10326 and authorised him to seek renewal of the registration and they have made application for renewal which is pending approval. 

29.	The Certificate of Incorporation shows the second Plaintiff is the Chairman of TLG 1390 while the Defendant remains Chairman of TLG 10326.  There is no clear evidence of the members of TLG 10326 agreeing to an alternative incorporation of the TLG 1390 to be led by the second Plaintiff. Therefore, I am not convinced that the second Plaintiff is the sole leader and Chairman of the Towangola Land Group of Golpu/Wafi. 

30.	While the defendant and his witnesses challenge the legality of the incorporation of the first Plaintiff, TLG 1390, the Court will not delve into the issue without a proper pleading on the part of the Defendant. The Defendant and other interested parties can mount their own proceedings if they so desire.

31.	For now, it suffices for the Court to find that while the second Plaintiff is the Chairman of TLG 1390, he is not the leader of the entire Towangola Land Group whose membership come under the incorporated entity TLG 10326 led by the Defendant. 

d.	Whether the Defendant has standing as officer of the first Plaintiff and to represent the first Plaintiff.

32.	The Plaintiffs submitted that the Defendant is not an officer of the first Plaintiff and can not representations on behalf of the first Plaintiff.  There is no dispute that the Defendant is not an officer of the first Plaintiff, TLG 1390 and can not legitimately make representations for TLG 1390. On the other hand, the Defendant is the Chairman and authorised officer of TLG 10326. As such it does not stop the Defendant from making representations on behalf of the Towangola landowners under the corporate name TGL 10326. 

33.	Clearly, the leadership tussle has now become problematic. Who is the genuine corporate body that should manage the affairs of Towangola land group to meaningfully participate in the benefit sharing and associated interests brought on by the Wafi/Golpu mine. In my view, the people will have to make that decision and choose their leaders accordingly.

34.	To answer the question posed, the Defendant is not an officer of TLG 1390 but is at liberty to make representations on behalf of Towangola Land Group by virtue of his position as Chairman in TLG 10326.

Conclusion

35.	In the end, even on the merits, it is not appropriate to grant declaratory orders where the orders will not resolve the issues between the parties. It has been held in Tin Siew Tan v PNG Electricity Commission (2002) SC683 that it is not appropriate to make orders where the orders will not resolve the dispute between the parties. 

36.	Apart from the finding that the proceedings are incompetent, I find, there is a serious dispute between members and leaders of Towangola Land Group which dispute requires the resolution by the Dispute-Settlement Authority under Part V of the Land Groups Incorporation Act 1974 and members of the land group. It is more appropriate to refer the dispute to the members of the Towangola Land Group to resolve.

What orders should the Court make 

37.	For the reasons given in the judgement, the Court will refuse the reliefs sought by the Plaintiffs. To restore harmony and continuity of participation and representation in the Golpu/Wafi mine by Towangola Land Group, the Court shall make alternative directional orders exercising its powers under Order 12 Rule 1 of the National Court Rules and Section 155 (4) of the Constitution directing the parties and the members of Towangola Land Group to resolve the leadership and corporate issues speedily.

Costs

38.	Costs are matters of discretion. Although the Plaintiffs are not granted the reliefs sought, I am reluctant to order costs against them. The parties to the proceedings are both concerned about the affairs of TLG, be it TLG 10326 or TLG 1390. The parties shall bear their own costs.

Orders

39.     The Court orders that:

1.	The reliefs sought by the Plaintiffs are all refused.

2.	The parties to the proceedings shall call a meeting of members of Towangola Land Group Inc to be chaired by the Bulolo District Administrator and the respective Chairmans of the Dispute-Settlement Authorities (both TLG 10326 & TLG 1390) to resolve the leadership issues and the corporate affairs of Towangola Land Group.

3.	The meetings shall be conducted within thirty (30) days from date of judgment.

4.	The parties shall bear their own costs.  

5.	Time is abridged.

Lawyer for the plaintiffs: Daniels & Associates Lawyers  	
Lawyers for the defendant: Watta Lawyers