N11734

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 94 OF 2025

BETWEEN:
EREMAS META 
in his capacity as the former Chairman of Qalkal Dananem Land Group Incorporated
First Plaintiff

v

SAMMY OLAN 
in his capacity as the current Chairman of Qalkal Dananem Land Group Incorporated
First Defendant

AUGUSTINE KAPANOMBO 
in his capacity as the Registrar of Incorporated Land Groups 
Second Defendant

BENJAMIN SAMSON
in his capacity as the Secretary of Department of Lands and Physical Planning 
Third Defendant 

INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant 

KOKOPO: CHRISTENSEN J 
17, 19 FEBRUARY 2025

CIVIL – APPLICATIONS – dispute as to process used by Registrar of Incorporated Land Groups – declarations sought – dispute as to leadership of incorporated land group – dispute about customary land group membership – dispute settlement authority – competency – jurisdiction of National Court – Land Groups Incorporation Act 1974 – Land Groups Incorporation (Amendment) Act 2009 – prerogative orders principal relief sought – necessary to exhaust other avenues – originating summons cannot be used as an alternative – attempt to circumvent – frivolous, vexatious, abuse of process – erroneous mode of proceeding – dismissed 

Cases cited

Dupnai v Weke [2016] PGSC 43, SC1525
Hegel v Kila [2012] PGSC 15, SC1180
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Markham Realty Development Limited v Orognaron Land Group Inc, Michael Maliaki & Ors [2023] PGNC 3, N10097
Mokagaha Land Group Incorporated v Tanomotu Land Group Incorporated & Ors [2025] PGNC 44, N11166
Samiak v Mosoro [2011] PGNC 239, N4916.  
The Church of Jesus Christ of Latter-Day Saints Inc v Kimsas & Ors [2022] PGSC 96, SC2280 
Vitolo v Mautu [2010] PGNC 112, N4104

Counsel

I Dalu for the plaintiff
J Kihanges for the first defendant

RULING ON MOTION 
Application for dismissal due to erroneous mode of proceeding

1.	CHRISTENSEN J: By way of notice of motion filed 27 November 2025, the first defendant seeks, pursuant to O 12 r  40(1) of the National Court Rules 1983, that this proceeding be dismissed in its entirety for disclosing no reasonable cause of action, and/ or for being frivolous, vexatious and/ or an abuse of the court process.   

2.	This proceeding commenced by way of an originating summons filed 8 May 2025.  It is necessary to set out in full the relief sought by the plaintiff, this being: 

(1)	A Declaration that the Application for Variation under s 9 of the Land Groups Incorporation (Amendment) Act 2009 and the subsequent Corrigendum including the issuance of the Certificate of Recognition of the Incorporated Land Group to the First Defendant and his Executive members (controlling body) and its Dispute Settlement Authority on the 14th of April 2025 were in total breach of s 14A – 14G of the Land Groups Incorporation Act and the Constitution of the Qalkal Dananem Land Group Incorporated. 

(2)	A Declaration that the Variation process followed under s 9 of the Land Groups Incorporation (Amendment) Act 2009 and the subsequent issuance of the Certificate of Recognition of Incorporated Land Group dated 14 April 2025 be declared null and void and of no effect on the grounds referred to in (1) above. 

(3)	A Declaration that the Certificate of Recognition of Incorporated Land Group issued on the 14 of April 2025 be revoked and the second defendant, the third defendant and the plaintiff comply with the provisions of the Land Groups Incorporation Act in appointing the new Executive Members (or Controlling Body) and its Dispute Settlement Authority on the grounds referred to in (1) above. 

3.	The plaintiff acknowledges that the essence of the proceeding as pleaded is concerned with whether or not the correct processes under the Land Groups Incorporation Act 1974 (LGIA) were followed by the second defendant in issuing the Certificate of Recognition to the Qalkal Dananem Land Group Incorporated (the land group).  In submissions, the plaintiff expresses the proceeding as being a “challeng[e] [of] the variation process used by the Registrar of Incorporated Land Groups...to recall the certificate of recognition and issue and amended certificate”.   

4.	The first defendant primarily submits that the proceeding is therefore plainly one in which judicial review is sought and that accordingly the current proceeding must be dismissed.  The circumstance here is to be contrasted with Mokagaha Land Group Incorporated v Tanomotu Land Group Incorporated & Ors [2025] PGNC 44, N11166 in that here the competency issue has been raised at a relatively early stage of the proceeding.   

5.	The plaintiff, while acknowledging that the claim is focused on the decision-making done by the Registrar, submits that judicial review is not an available mode of proceeding as the decision of the Registrar was not final.  The plaintiff submits that accordingly the first defendant’s application for dismissal is misconceived.  

6.	Both parties otherwise assisted the court as to whether, in any event, the National Court has jurisdiction to determine this matter noting the provisions of the LGIA, in particular Part IV as to Dispute Settlement.  The circumstance here is to be contrasted with Vitolo v Mautu [2010] PGNC 112, N4104 where, when the National Court determined a proceeding involving a dispute as to the leadership of an incorporated land group, no objection was taken as to jurisdiction.  

7.	The parties’ submissions were opposed as to whether the National Court has jurisdiction over this proceeding.  The plaintiff submitted that, if not a judicial review proceeding, Part IV of the LGIA is of application to the dispute and that the Dispute Settlement Authority (DSA), the Village Court or the District Court are the only avenues for resolution of the issues raised.  The defendant’s submission is that the National Court does have jurisdiction.  This is submitted to be because the Land Groups Incorporation (Amendment) Act 2009 amended the meaning of Court to “the National Court” and s 23 of the LGIA is to be interpreted in a way that gives effect to this.  It is submitted by the plaintiff that accordingly this proceeding is the appropriate avenue for determination of the issue.    

8.	As it transpires, it is unnecessary for me to decide whether the National Court has jurisdiction to determine this proceeding with reference to Part IV of the LGIA.   This is because I am satisfied that the mode of proceeding is erroneous as it is more correctly a judicial review proceeding.  The mode of proceeding being irregular, the proceeding is readily able to be characterised as frivolous, vexatious, and/ or an abuse of process.  The reasons for this are as follows.   

Evidence and submissions

9.	From 2005 until 2024 the plaintiff held a position as the Chairman of the land group.  In 2024, purported members of the land group held a meeting to change the Chairman and the executive.  The meeting resulted in the appointment of a new executive, and the first defendant, Mr Sammy Olan, being appointed as the Chairman.  

10.	The affidavit material filed to date makes plain that the plaintiff contests the authority of members of the current executive to hold such positions with it contended that they are not true clan members of Qalkal Dananem.  The plaintiff contends that the new executive formed from subclans, and that they formed the new executive without the knowledge and authority of the major clan.  

11.	The current purported Secretary, Mr Jerry Tania, deposes, by way of affidavit filed 28 November 2025, that following these appointments the necessary steps were taken to register the variation to the management committee and the dispute settlement authority.  A Certificate of Recognition was presented to the purported current executive by the Department of Lands and Physical Planning on 14 March 2025.  

12.	Mr Tania deposes that to his knowledge the plaintiff and the previous executive have not lodged or filed any objection to the appointments or the issuing of the Certificate.   The plaintiff deposes, by way of affidavit filed 8 May 2025, that an objection to the notice of variation was lodged on grounds that the villages named were erroneous and that the proposed committee members were not members of the land group.  As a result, corrections were made to the villages identified, and a new notice of variation was issued on 7 April 2025.  It is not clear whether the plaintiff lodged a further objection to the new notice of variation.  

13.	It became clear during the course of submissions that no process by way of a DSA has occurred with respect to the current issues raised.  While the affidavit of the plaintiff attaches a letter dated 17 April 2025 directed to the ‘ILG Dispute Settlement Authority’, it is explained in the affidavit that this was served on the second defendant’s office.   The plaintiff submits that no DSA process has occurred because the plaintiff does not recognise the authority of the DSA as described in the latest Constitution of the land group, being that it involves members without standing in the customary group.  Be that as it may, the current Constitution, and former Constitution, both contain the required DSA provisions.  

14.	The plaintiff submits as to this that a DSA process is in any event of non application to the issues here because it involves a dispute with non-members: s 20(1) LGIA.  This is because the plaintiff does not recognise the members of the DSA in the current Constitution as recognisable members of the customary group, nor does the plaintiff recognise the purported executive members as holding customary membership to the land group. 

15.	The difficulty with this position is that until such time as the current Certificate of Recognition is found to be null and/ or void, the current Constitution of the ILG is the most recent one produced by the current purported executive.  This Constitution provides for the DSA mechanism, inclusive that the ‘DSA should be an independent and a neutral body to deliberate on the ILG’s disputes, preferably Village Court officials or land mediators from the local area’.  

Consideration

16.	It is apparent that, at its core, this is a dispute about customary land group membership. This in itself may lead to a conclusion that this court lacks jurisdiction: Hegel v Kila [2012] PGSC 15, SC1180.  

17.	Further, whether the nature of this dispute is such that it falls within the jurisdiction of the National Court is I think unlikely given the provisions of the ILGA, in particular Part IV and the availability of a DSA mechanism by virtue of s 20(2) of the ILGA.  It is however unnecessary for me to decide this for current purposes.  

18.	This is because what is clear is that the proceeding as originated seeks orders in the nature of declaratory orders arising from judicial review and the proceeding has not been instituted in that form.  I find this is so with respect to all of the relief sought by the plaintiff, that is, they are all in the nature of prerogative orders and that is the principal relief sought: cf Markham Realty Development Limited v Orognaron Land Group Inc, Michael Maliaki & Ors [2023] PGNC 3, N10097; Samiak v Mosoro [2011] PGNC 239, N4916.  

19.	The plaintiff submits that a judicial review proceeding is not an available mode of proceeding for the cause of action and the relief sought because the decision of the Registrar is not a final one. The plaintiff submits, despite a preliminary submission that Part IV of the ILGA is not of application in this dispute, that finality in the decision has not been realised as there exists jurisdiction in the National Court pursuant to s 23 of the Act to determine the issues raised, and that otherwise, the plaintiff has available to him an appeal to the Minister (s 26 of the ILGA).  

20.	As to the first of these, the plaintiff submits that the inclusion in the 2009 amendment that the ‘National Court’ is the meaning of ‘Court’ in the definitions to the ILGA avails this Court of jurisdiction pursuant to s 23 of the ILGA.  This submission appears to ignore the plaintiff’s own preliminary submission that Part IV, which includes s 23, is not of application in accordance with s 20 of the ILGA, and ignores that s 23(1) only enlivens jurisdiction if certain preconditions are met.  As to the last of the plaintiff’s submission, being that an appeal to the Minister is available, it was submitted that this is a lengthy and impracticable process. No submission was made as to whether the plaintiff had available to him, or did and failed to utilise it, the lodging of any further objection with the Registrar after the new notice of variation was issued.  

21.	In accordance with well settled principle (see, Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122; Dupnai v Weke [2016] PGSC 43, SC1525) I agree with the effect of the plaintiff’s submission that leave for judicial review is not to be sought before the applicant has exhausted all other statutory or administrative avenues for appeal or review.   However, I do not agree that it then follows that the appropriate course is to file a proceeding by way of originating summons where the relief sought is directed towards judicial review.   

22.	Where the claim made and relief sought is directed towards review of the 
decision-making of a public authority, the mode of proceeding is by way of judicial review.  As explained in Kekedo v Burns Philp: 

The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers.

23.	Here, the plaintiff himself acknowledges that the claim is one directed towards review of the decision-making process of the Registrar.  That there are pre-conditions yet to be met or undertaken by the plaintiff in order to seek such leave is not a basis upon which a proceeding can be instituted erroneously.  In doing so, the plaintiff has sought to circumvent the applicable processes of the Court which leads readily to a conclusion that the proceeding is frivolous and/ or vexatious and/ or an abuse of process.  

24.	While it is well established that a plaintiff should not be driven from the judgment seat prematurely, so to is it well established that “judicial review is a special process exclusively provided for by Order 16 of the National Court Rules 1989....[a]pplications for judicial review...must be taken in accordance with the process and procedure provided for thereunder”: The Church of Jesus Christ of Latter-Day Saints Inc v Kimsas & Ors [2022] PGSC 96, SC2280 at [8].  

25.	The difficulty with the failure to institute the proceedings by way of the correct mode is evidenced by a particular factor that arises in this matter.  At the hearing of the current motion, the plaintiff informed the Court that the State is yet to be served with the proceeding.  It was submitted that s 5 of the Claims By and Against the State Act 1996 is not of application as it only applies to a cause of action involving a breach of contract or tort.  It was sought that in addition to dismissing the motion, the court make directions as to service on second, third, and fourth defendants.  That the proceeding has progressed to this point, having been instituted on 8 May 2025, without the involvement of the State is of concern.  

26.	If, instead, the proceeding had been instituted correctly, it would not have progressed past the stage of leave without the State being afforded an opportunity to be heard: s 8 Claims By and Against the State Act.   The State is a critical respondent in this proceeding given the claims made and relief sought.  The approach by the plaintiff to not involve the State from an early stage in itself emphasises the need for the correct mode of proceeding to be utilised, and does little to persuade the court that this proceeding has been anything other than a proceeding that is vexatious, frivolous and/ or  an abuse of process. 

27.	I find that the mode of proceeding is erroneous and that the proceeding is frivolous 
and/ or vexatious and/ or an abuse of process.  

Orders

28.	For those reasons, the following orders are made:

(1)	The application in notice of motion filed 27 November 2025 is granted and the proceeding is dismissed pursuant to Order 12, Rule 40(1)(b) and/ or Rule 40(1)(c) of the National Court Rules 1983. 

(2)	I will hear from the parties as to costs.  
________________________________________________________________
Lawyers for the plaintiff: Ainui Legal Services
Lawyers for the first defendant: Kihanges Lawyers