N11688

PAPUA NEW GUINEA                                                                                 [NATIONAL COURT OF JUSTICE]

OS (JR) NO. 181 OF 2015

BETWEEN:
TIMBI BARR for and on behalf of himself and for and on behalf of and as representing the members of the Kukulika Tribe of Hagen Central Electorate, Mt Hagen, Western Highlands Province, whose names appear on the Schedule to the Originating Summons
Plaintiffs

AND:
JAMES POLI for and on behalf of himself and for and on behalf of and as representing the members of the Jiga Malakambs Sub-Clan of the Jiga Tribe of Hagen Central Electorate, Mt Hagen, Western Highlands Province First Defendants

AND:
RAIM KUNJIL, PUT MAKRUPA, MARCUS PUP and PETER POTI in their capacities as Land Mediators                                                   		              Second Defendants

AND:
PAUL AKEL in his capacity as the Magistrate of the Local Land Court at Mt Hagen, Western Highlands Province
Third Defendant

MT. HAGEN: KAULE AJ
21 OCTOBER 2025; 28 JANUARY 2026
                                                                               
JUDICIAL REVIEW – Review of proceedings of Local Land Court approving mediation agreement – Land Disputes Settlement Act Chapter No. 45 – Whether there was a mediation agreement – Whether the Local Land Court proceedings was conducted contrary to the provisions of the Land Disputes Settlement Act. 

Cases cited
Alex Timothy v Hon Francis Marus (2014) SC1403
Ameng v Poia [1998] PCNC 98; 1765
Bauno v Gora SPM [2013] PGNC 286; N5201
The State v Giddings [1981] PNGLR 423
Re Application of Louise Autsila Ainie for Leave for Judicial Review (2004) N2533
PNG Forest Authority v Iare Tribe (2008) N4022

Counsel
E. Lili, for the plaintiff
G. Bon, for the first defendant
H. White, for the second and third defendants   

JUDGMENT

1.  KAULE AJ: This is an application for judicial review filed by the plaintiffs on 7 April 2015. The substantive matter was listed before me on 21 October 2025 for hearing, during which time parties confirmed the position that a hearing and determination would be made on the papers, pursuant to previous orders made by his Honour Deputy Chief Justice Kandakasi on 16 May 2025. 
2. After hearing from respective counsel and confirming the said Court Order of 16 May 2025 from the Court file, I reserved my decision.
3. This is the decision of the Court.

BACKGROUND

4. The plaintiffs are members of the Kukulika Tribe of the Mt Hagen Central District, Western Highlands Province. They filed this proceeding against the first defendants, who are members of the Jiga Malakamb Clan of the Jiga Tribe, also of Mt Hagen Central District, Western Highlands Province. 
5. The second defendants are land mediators in Mt Hagen that were involved with mediation in respect of the land dispute between the plaintiffs and the first defendants.
6. The third defendant is named in the proceeding as the local Land Magistrate based in      Mt Hagen, Western Highlands Province. 
7. The plaintiffs and the first defendants share a common customary land boundary known as “Lalinga Land” (“subject land”) which has been a subject of numerous disputes between them over the years.
8.  Prior to 1990, there were disputes between the plaintiffs and the first defendants in relation to their common land boundary. 
9. The first time that the plaintiffs and the first defendants brought their land dispute to the Mt Hagen Local Land Court (“Local Land Court”) was in 1990. On 17 August 1990, the Local Land Court made a decision in the following terms:

“That by a majority decision, the historical and original ownership of the said Lalinga Land do belong to the Keme Kukulika Tribes and not the Jika Malakambs sub-clan.
However:
 Because of the long, long years of both the Jiga Malakambs sub-clan and the Keme Kukulika Tribes having been in co-existence or living together prior to the differences towards the late 1980’s over the original ownership of the said Lalinga Land and; on the principles of natural justice, this Court again by majority ruled that the Lalinga Land be equally/fairly allocated to the respective Subclan and Tribe.”

10. On 6 November 2001, the plaintiffs applied to the Local Land Court to vary the court decision of 1990. The Local Land Court then made a decision which varied the second part of the 1990 decision. The order was as follows:

“I therefore vary this part of the decision [and] in its place the boundaries between the Kuklikas and the Jiga Malakambs be drawn as proposed and accepted by the majority in 1989 provided no hardships or inconvenience to be caused to those Jiga Malakamps already occupying parts of or within the Lalinga Land.”

11. On 2 October 2013, there was an alleged land mediation held between the plaintiffs and the first defendants regarding their common land boundary, during which time a mediation agreement was reached. 
12. On 3 October 2013, an application for approval of the mediation agreement was made in the Local Land Court, which was granted on 10 October 2013. 

PROCEDURAL HISTORY

13. The history of proceedings in the Local Land Courts between the plaintiff and the first defendants are briefly highlighted above at [9], [10], [11] and [12].
 14.  On 7 April 2015, the plaintiffs filed this proceeding at the Waigani National Court and sought leave to apply for judicial review of the decision of the Mt Hagen Local Land Court of 10 October 2013, which approved the mediation agreement of 3 October 2013.
15. On 6 May 2015, his Honour Justice Gavara Nanu refused leave for judicial review. Aggrieved by the National Court’s decision, the plaintiffs filed an appeal to the Supreme Court. 
16. On 28 October 2015, the Supreme Court upheld the plaintiffs’ appeal and granted leave for judicial review. 
17. On 2 November 2015, the plaintiffs filed their substantive Notice of Motion for judicial review in the proceeding. 
18. On 21 March 2016, the National Court at Waigani ordered for the transfer of the proceedings to Mt Hagen National Court for listing.
19. On 16 August 2016, his Honour Justice Poole sitting as the National Court in Mt Hagen dismissed the plaintiffs’ substantive Notice of Motion for judicial review, filed on 2 November 2015, and made orders for the proceeding to progress by way of pleadings, among other orders. 
20. The plaintiffs were aggrieved by the National Court decision of 16 August 2016 and resorted to file an Application for Leave to Appeal to the Supreme Court, via SCA No. 114 of 2016. 
21. On 7 September 2016, the Supreme Court in proceedings SCA No. 114 of 2016 stayed the National Court orders pending the outcome of the Supreme Court proceeding.
22. On 21 September 2016, the National Court adjourned this proceeding to the Registry pending the determination of the Supreme Court proceeding, SCA No. 114 of 2016.
23. On 4 October 2016, the Supreme Court confirmed the terms of a Consent Order which, among other orders, set aside the National Court Orders of 16 August 2016 and remitted the matter to the National Court, to be heard before another Judge.
24. On 5 February 2017, the substantive judicial review proceeding was heard by his Honour late Justice Lindsay, and the decision was reserved.
25. The decision in respect of the substantive judicial review proceeding was not delivered by the time his Honour late Justice Lindsay passed away in November 2024.
26. On 16 May 2025, his Honour Deputy Chief Justice Kandakasi ordered that the substantive judicial review proceeding heard by his Honour late Justice Lindsay be declared a mistrial and the matter proceed to a “hearing only on the papers.”
28. On 11 July 2025, the substantive judicial review proceeding was listed before his Honour Coates but due to the non-appearance of parties that day, the matter was dismissed.
29. On 3 September 2025, the ex parte Order of 11 July 2025 was set aside by her Honour Justice Eliakim on application by the plaintiffs.
30. On 21 October 2025, the substantive judicial review proceeding came before me for hearing, during which time I reserved my decision.

ISSUES

31. The issues for determination are as follows:
(a) Whether there was a mediation agreement between the plaintiffs and the first defendants on 2 October 2013.
     (b) Whether the Mt Hagen Local Land Court reached its decision dated 10 October 2013 in breach of the mandatory provisions of the Land Disputes Settlement Act.

THE LAW 

32. Judicial review under Order 16 of the National Court Rules is a special and exclusive procedure which deals with complaints by person aggrieved by the decisions of public administrative bodies and persons exercising public power conferred by statute. See Alex Timothy v Hon Francis Marus (2014) SC1403.
33. The Land Courts are created by statute, namely, the Land Disputes Settlement Act (“LDS Act”) and only have the jurisdiction and powers given to them in the legislation. They cannot express powers outside of the terms of the legislation. See Ameng v Poia [1998] PCNC 98; 1765; Bauno v Gora SPM [2013] PGNC 286; N5201.

CONSIDERATION
 
34. I will now consider the issues raised in the proceeding and determine them. 

Issue (a): Whether there was a mediation agreement between the plaintiffs and the first defendants on 2 October 2013.

35. The plaintiffs’ position is that they did not request for any mediation of disputes in relation to the common boundary of the subject land or even in relation to parcels of land identified in the Notice to Commence Mediation as “Wantip, Ganga, Bunawakrui, Kurup, Kining and Golka.” 
36. The plaintiffs further say that they refused to participate, and were not present, at the mediation with the first defendants on 2 October 2013 or on any earlier date. They could not have agreed to, and in fact did not agree to, the terms of the mediation agreement dated 2 October 2013.
37. The plaintiffs maintain that there was no agreement between the plaintiffs and the first defendants on 2 October 2013 that confirmed an alleged agreement reached in the year 2000 to dig “a big drain to commence from Terma Rumint's coffee through the head of Kurup Creek straight to Ganga Creek to Ganga Birbir straight to Kukuma's drain all the way to Wimbuka Community School.” 
38. The plaintiffs’ arguments against any mediation between them and the first defendant are based on the following points:
(a)	 The traditional lands detailed in the Notice to Commence Mediation were small stretches of land within the subject land. The issues of customary ownership and the common land boundary of the subject land were already decided by the Local Land Courts in 1990 and 2001.
(b)	The common land boundary between the plaintiffs and the first defendants is as set by the Local Land Court decisions of 1990 and 2001, and accordingly there were no new land disputes capable of being mediated. If the first defendants were not agreeable with the Land Court decisions of 1990 and 2001, they should make a proper application to the relevant Court to review those decisions.
 39. The first defendants maintain that the plaintiffs were present at the mediation on 2 October 2013 and that they agreed to the terms of the mediation agreement.
40. The first defendants further submits that the lead plaintiff had shown his own interest in bringing the matter up after both the plaintiffs and the first defendants had all agreed to the terms of the agreement in the meeting on 2 October 2013, which was conducted in public.
41. Having considered the evidence contained in the Review Book (“RB”) as well as submissions filed by respective counsel for the plaintiffs and the first defendants, I am not satisfied that the plaintiffs were parties to the mediation agreement of 2 October 2013 and had agreed to such terms as are set out therein. The following are my reasons:
(a) Two of the plaintiffs named in the Record of Mediation dated 2 October 2013, namely Kuk Kundaki and Makinta Koi, deny that they were there at that time. Furthermore, they say that their names were printed in the Record of Mediation without their knowledge and consent. (See paragraph 19 of Kuk Kundaki’s affidavit filed on 7 April 2015 (RB 150), which facts are supported by Makinta Koi in his affidavit filed on 16 November 2015  (RB 359). There is no evidence by the first, second and third defendants rebutting the evidence of these plaintiffs.
(b) Out of the names of the plaintiffs listed in the Record of Mediation as “Witnesses to Land boundaries” two of them, Bar Koi and Poli Nori, were deceased well before 2 October 2013. Paul Nori passed away in 2009 and Bar Koi on 17 April 2011. (See paragraph 21 of Timbi Barr’s affidavit, filed on 7 April 2015 (RB 47) and paragraph 20 of Kuk Kundaki’s affidavit filed on 7 April 2015 (RB 150)). There is no evidence by the first, second and third defendants rebutting this evidence. The obvious question then is how could their names be listed as “Witnesses” when they were not alive on 2 October 2013? This brings the integrity of the Record of Mediation into serious question.
(c) The Record of Mediation does not have the signatures of the parties, apart from those of the four mediators mentioned in that document. In my view, without any signatures of the representatives of the plaintiffs and the first defendants, either in that document or in any other supporting document, there is no written evidence to confirm the parties’ agreement and willingness to abide by the terms of any mediated agreement between them.    
42. Based on the foregoing, I am not convinced that the Record of Mediation is conclusive proof of a mediated agreement between the plaintiffs and the first defendants on 2 October 2013. As a result, I find that there was no mediation agreement between the parties.

Issue (b): Whether the Local Land Court reached its decision dated 10 October 2013 in breach of the mandatory provisions of the LDS Act. 

43. Despite my finding regarding Issue (a) above, that there was no mediation agreement between the plaintiffs and the first defendants, I will go on to consider the next issue because that mediation agreement did go before the Local Land Court on 10 October 2013, and an order was made confirming its terms. 
44. The plaintiffs have set out their grounds for judicial review in their Statement filed on 7 April 2015 (“Statement”). 
  
Breach of Natural Justice.

45. The first ground raised by the plaintiffs is that there was breach of natural justice. This is set out in paragraphs 3 (f), 3 (g) (i) and 3 (h) of the Statement.
46. I note that on 3 October 2013 an application for approval of the mediation agreement was made to the Local Land Court. On 10 October 2013, the Local Land Court approved the mediation agreement. 
47. The plaintiffs complain that at all material times they were not consulted or made aware of the application for approval of the mediation agreement. It was the first defendants who unilaterally initiated the application, without giving notice to them. Hence, the plaintiffs did not attend before the Local Land Court on 10 October 2013.
48. The plaintiffs further argue that the Local Land Court conducted its hearing on 10 October 2013 in a manner that was contrary to the principles of natural justice, as the plaintiffs were not given an opportunity to be heard before the Local Land Court approved the mediation agreement.
49. The first defendants submit that there was no denial of natural justice from the start as the plaintiffs were served prior notices of the mediation and out of that mediation an agreement was reached, which was subsequently converted into an order by the Local Land Court. 
50. The first defendants further submit that there was no breach of natural justice in relation to the proceeding before the Local Land Court. Proper processes were followed by the Local Land Court after an agreement was reached by the plaintiffs and the first defendants.
51. Having considered the evidence and submissions of counsel, I note that the matter of natural justice in relation to the mediation on 2 October 2013 is not an issue. The clear evidence is that the plaintiffs did not attend the mediation, even though they received notice of the mediation. The plaintiffs have conceded the fact that they received such notice but refused to attend the mediation.  
52. I note also that there is no evidence that show that the plaintiffs were given notice of the intended application for approval of the mediation agreement, either by the first defendants or by the Local Land Court. I reject the first defendants’ submission that both parties were in agreement so the application to the Local Land Court was a mere formality. Notice of the application to the Local Land Court should have been given to the plaintiffs. This did not happen. Accordingly, I find that the plaintiffs were denied the opportunity to appear before the Local Land Court on 10 October 2013 and be heard on their position at that forum.
53. I turn next to the proceeding before the Local Land Court on 10 October 2013 and consider whether proper processes were followed. 
54. It is necessary to examine the relevant provisions of the LDS Act. Section 19 of the LDS Act relevantly provides as follows:
(1) The parties to an agreement may apply to a Local Land Court to have the agreement approved.
(2)	On receiving an application under Subsection (1), the Court shall make such inquiries as it thinks necessary to ensure that –
(a)	the terms of the agreement are fully understood by the parties; and
(b)	where a party to the agreement consists of more than one person, a substantial majority of the persons comprising the party concur with the terms of the agreement; and
(c) the agreement is not in breach of any law, or contrary to natural justice or public policy.”
55. Section 19 (1) provides in clear terms that the application for approval of the mediation agreement should be made by “the parties to the agreement” and not by a party. I note from the evidence that the first defendants applied to the Local Land Court on 3 October 2013 without the knowledge, input and agreement of the plaintiffs. Such conduct of the first defendants is contrary to Section 19 (1) and it was open to the Court not to entertain such application, as it failed to include the plaintiffs who were an interested party. 
56. Section 19 (2) provides in mandatory terms that once a Local Land Court receives an application for approval of a mediation agreement, the Court must make inquiries and satisfy itself, firstly, that “the terms of the agreement are fully understood by the parties.” In my view, this necessitates all parties interested in the matter to be present before the Local Land Court to answer any queries raised by the Court and exercise their right to have their say and be heard by the Court. 
57. If the Court goes ahead and deal with the application before it without the presence and input of an interested party, this results in not only a breach of Section 19 of the LDS Act but also amounts to a breach of natural justice.
58. I am satisfied from a consideration of the evidence that the plaintiffs were not given notice of the time and place of the hearing on 10 October 2013. (See paragraph 24 of the affidavit of the lead plaintiff, Timbi Barr (RB 213)). Furthermore, the Court approved the mediation agreement in the absence of the plaintiffs and without hearing from them, which is contrary to the mandatory requirements set out Section 19 (2) of the LDS Act. (See paragraph 24 of the affidavit of Timbi Barr (RB 214); paragraph 23 of the affidavit of Kuk Kundaki,  (RB 156) and paragraph 5 of the affidavit of Wani Barr (RB 340)).
59. In The State v Giddings [1981] PNGLR 423 at 428, Kearney DCJ stated:
   
“A Local Land Court is required to observe the rules of natural justice, when conducting its hearing; that appears, a little indirectly, but very clearly, from s. 59(b). The minimum requirement of those rules is set out in Constitution s. 59(2): “to act fairly and, in principle, to be seen to act fairly.” Failure to allow the disputing parties to put their respective cases in each other's presence, is a breach of those rules. So was the failure to give notice of place and time of hearing. Failure to hold the proceedings in public-indeed, there may not have been any “proceedings” at all-and announce the decision in public, is a breach of the Constitution, s. 37(12).”

The Local Land Court acted ultra vires Section 19 (2) of the LDS Act.

60. The second ground raised by the plaintiffs is that the Local Land Court acted ultra vires Section 19 (2) of the LDS Act. This is set out in paragraphs 3 (g) (i) of the Statement.
61. I have touched on this point earlier in my consideration at [55], [56], [57] and [58] above, so I will not repeat these matters. It will suffice to mention that when the Local land Court approved the mediation agreement on 10 October 2013 without first enquiring with the plaintiffs to satisfy itself of the mandatory requirements under Section 19 (2) (a), (b) and (c) of the LDS Act, it acted ultra vires. The powers and functions of a magistrate of a Local Land Court are conferred by the LDS Act. Any act outside the ambits of the LDS Act is an act that is ultra vires. See Re Application of Louise Autsila Ainie for Leave for Judicial Review (2004) N2533 at pg 16; PNG Forest Authority v Iare Tribe (2008) N4022 at par 26.

The Local Land Court committed an error of law to approve the mediation agreement.

62. The third ground raised by the plaintiffs is that the Local Land Court committed an error of law to approve the mediation agreement. This is set out in paragraphs 3 (g) (ii) of the Statement.
63. Section 19 (5) of the LDS Act states:

    “Where the Court is satisfied as to the matters specified in Subsection (2), it may approve the agreement.”

64. Since I have found that the Local Land Court did not comply with the mandatory requirements of Section 19 (2), it was never in a position to satisfy itself of the matters stated in that provision. By proceeding to approve the mediation agreement on 10 October 2013 without first complying with the mandatory requirements under Section 19 (2) (a), (b) & (c) of the LDS Act, the Local Land Court committed an error of law.

The first defendants' application to approve the mediation agreement was defective. 

65. The fourth ground relied on by the plaintiffs is that the first defendants' application to approve the mediation agreement was defective. This is set out in paragraphs 3 (g) (iv) of the Statement.
66. The plaintiffs say that the Local Land Court decision of 10 October 2013 that approved the mediation agreement dated 2 October 2013, stated at paragraph 1 of the decision that the application was made pursuant to “section 27 (2) of the Land Disputes Settlement Act 1975” which cited a wrong provision of the LDS Act.
67. Section 27 (2) of the LDS Act states:

“Where a dispute relates to land that is not situated either wholly or partly in a Land Mediation Area, a Local Land Court has no jurisdiction in relation to the dispute unless a Magistrate of a District Court, after having satisfied himself that, if there is a customary dispute settlement authority the dispute has been considered by it, has first certified that-
(a)	there is no reasonable likelihood of the dispute being settled without a court hearing; and
(b)	in his opinion, there is good reason for the dispute to be dealt with without delay.”
68. I accept the plaintiffs’ submission that Section 27 (2) of the LDS Act is not the correct jurisdictional basis to make an application to approve a mediation agreement. The correct provision is Section 19 (1) of the LDS Act which states that “the parties to an agreement may apply to a Local Land Court to have the agreement approved.” I therefore find that the first defendants' application to approve the mediation agreement was defective for citing a wrong provision of the LDS Act.

The decision dated 10 October 2013 is in breach of the decision dated 17 August 1990 and varied on 6 November 2001. 

69. The fifth ground relied on by the plaintiffs is that the Local Land Court decision of 10 October 2013 is in breach of the decision dated 17 August 1990 and varied on 6 November 2001. This is set out in paragraphs 3 (g) (v) of the Statement.
70. I note that the decision of the Local Land Court dated 17 August 1990 and varied on 6 November 2001 resolved the issue of the common land boundary of the plaintiffs and the first defendants. Up to October 2013, there was no review of these Land Court decisions by either the plaintiffs or the first defendants.
71. I find that the Local Land Court decision of 10 October 2013 is contrary to the Local Land Court decisions of 17 August 1990 and varied on 6 November 2001.  

The third defendant was not appointed as a magistrate of the Local Land Court.

72. The sixth ground raised by the plaintiffs is that the third defendant was not an appointed  magistrate of the Local Land Court and lacked jurisdiction to hear and approve the mediation agreement. This is set out in paragraphs 3 (g) (vi) of the Statement.
73. There is evidence that the third respondent at the relevant time in October 2013 was not a District Court Magistrate or even appointed as a Magistrate of the Local Land Court. (See letter dated 21 December 2015 (RB 399) from the Office of the Chief Magistrate to Ashurst Lawyers). There is no evidence by the third defendant rebutting these matters.
74. I accept the plaintiffs’ submission that the Local Land Court lacked jurisdiction to hear and approve the mediation agreement on 10 October 2013 as it was not properly constituted, for the reason that the third defendant was not a Local Land Court Magistrate.

The Local Land Court decision dated 10 October 2013 is unreasonable. 

75. The seventh ground raised by the plaintiffs is that the decision of 10 October 2013 is unreasonable. This is set out in paragraph 3 (i) of the Statement.
76. Having already found that the Local Land Court failed to comply with the Section 19 (2) (a), (b) & (c) of the LDS Act in approving the mediation agreement, I am of the view that no reasonable Local Land Court doing justice between the plaintiffs and the first defendants would have made the decision of 10 October 2013.

CONCLUSION
 
77. Based on the foregoing, I will grant the plaintiffs’ application for judicial review. I shall make orders in terms of the relief sought as set out in the plaintiffs’ Statement.

COURT ORDER

78. The formal orders of the Court are:
      1. The plaintiffs’ application for judicial review is granted.
2. An Order in the nature of certiorari quashing the decision of the Local Land Court held at Mt Hagen made on 10 October 2013 approving the Mediation Agreement made on 2 October 2013 between the plaintiffs and the first defendants.
3. A Declaration that the Mediation Agreement made on 2 October 2013 between the plaintiffs and the first defendants is void and is of no effect.
4. A Declaration that there was no agreement between the plaintiffs and the first defendants reached in the year 2000, to dig a “big drain to commence from Terma Rumint's coffee through the head of Kurup Creek straight to Ganga Creek to Ganga Birbir straight to Kukuma 's drain all the way to Wimbuka Community School.”
5. The temporary restraining orders dated 14 April 2014 made by the Local Land Court on the application of James Poli, Yop Randa and Lucas Kuk, who are the first defendants and members of the Jiga Malakambs sub-clan of the Jiga Tribe, is set aside.
6. The defendants shall pay the plaintiffs' costs of this proceeding on a party-party basis, to be taxed if not agreed.
7. Time for entry of the orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

The Court orders accordingly.
________________________________________________________________
Lawyers for the plaintiff: Ashurst PNG Lawyers
Lawyers for the first defendant: Gibson Bon Lawyers 
Lawyer for the second and third defendants: Solicitor General