N11716

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS	216 OF 2025
 
 JOSEPH CHARLES METTA for and on behalf of himself and other members of the Kedopoho ILG, in particular clan members of Bola and Kavutu clans whose names appear in the schedule attached herein.
Plaintiffs

v

URBAN KAVE, Chairman and former Secretary – Kedopoho Incorporated Land Group
First Defendant

ANDREW TAROA, Vice Chairman – Kedopoho Incorporated Land Group
Second Defendant

JEREMIAH KAVE, Secretary – Kedopoho Incorporated Land Group
Third Defendant

KEDOPOHO INCORPORATED LAND GROUP
Fourth Defendant

MELCHIOR BABO, Chief Executive Officer, Talasea District
Fifth Defendant

KIMBE: ANDELMAN J
26 NOVEMBER 2025; 13 FEBRUARY 2026 

NOTICE OF MOTION – originating summons - entire proceeding to be dismissed on the basis of no reasonable cause of action is disclosed – allegation that Incorporated Land Group failed to properly conduct an Annual General Meeting and that the Board is therefore unlawful and null and void. 

NOTICE OF MOTION – mandatory interim injunction – to freeze access to a bank account 

Mr Metta on behalf of himself and others alleged that the purported Annual General Meeting (AGM) conducted on 15 November 2022 by the fourth defendant and the election of the first to the third defendants was unlawful and hence null and void and of no legal effect and sought declarations to that effect.

The plaintiffs sought orders for the conduct of a new AGM to be conducted by the Assistant Registrar of the National Court and for the signatories of the bank account to be changed to newly elected board members. The plaintiffs sought a mandatory interim injunction for the bank account to be frozen. The second defendant, supported the plaintiffs’ claim. 

The first, third, fourth and fifth defendants sought for the proceedings to be dismissed.
Held:
(1)	The whole proceeding is dismissed as the originating summons filed on 6 October 2025 discloses no reasonable cause of action.
(2)	The plaintiffs pay costs of the first, third, fourth and fifth defendants on a party-party basis. 

Cases cited

Aihi v The State (No 1) [1981] PNGLR 81
Aote & Ors v National Capital District Commission SC79 of 2025; SC2798
Amos Ere v National Housing Corporation (2016) N6515
Powi v Southern Highlands Provincial Government (2006) SC844
SCR No 2 of 1981 [1981] PNGLR 150

Counsel

Mr P Mokae, for the plaintiff
Mr A Kumbari, for the second defendant
Mr J Kusip, for the first, third, fourth and fifth defendants

1.	ANDELMAN J: This is a decision on two Notices of Motion. An Amended Notice of Motion filed by the first, third, fourth and fifth defendants on 23 October 2025 and the plaintiffs’ Notice of Motion filed on 6 October 2025. Both were heard on 26 November 2025. 
2.	The defendants submitted that the whole of the proceeding should be dismissed on the ground that the proceedings disclosed no reasonable cause of action, they relied on Order 12 r 40(1)(a), (b) and (c) of the National Court Rules.

3.	The plaintiffs submitted that the Court should make an order freezing the fourth defendant’s bank account until the proceeding is heard and determined.

 Pleadings
4.	The originating summons filed on 6 October 2025 sought declarations and orders relying on Order 12 r 1 of the National Court Rules and s 155(4) of the Constitution. 

5.	Relief 1 sought that a declaration be made that the:
The purported Annual General Meeting of the fourth defendant conducted on 15 November 2022 and the purported election of the first second and the third defendants with all other current members of the fourth defendant’s board is unlawful and hence null and void and of no legal effect.
6.	Relief 2 sought a declaration that the defendants were conducting themselves illegally. Relieves 3 to 5 sought orders for the conduct of a new AGM and paragraph 6 sought a freezing order on the fourth defendant’s bank account.

Evidence

7.	The plaintiffs relied on the affidavit of Joseph Metta sworn on 2 September 2025 and affidavit of Andrew Taroa sworn on 20 October 2025.

8.	Mr Metta’s evidence was that he was a clan leader of one of the land owning clans that make up Kedepoho Incorporated Land Group (ILG) and that other members of his clan had given him permission to act on their behalf. Mr Metta stated that there had only been one Annual General Meeting in the 24 years that the ILG had been established and that the executive members of the ILG run it as their private company and there is no information about the ILG’s funds and the rights of the members.

9.	On 8 February 2021 he requested that an AGM be conducted. On 3 March 2021 it was confirmed in writing that an AGM would occur on 8 March 2021 and the agenda was set out in writing, including; ‘opening bank account of the ILG, 3 to sign, Chairman, Vice Chairman and Treasurer’. However no AGM took place. On 22 October 2022 there was a further request for an AGM. Unbeknown to the plaintiff and without notice, an AGM was conducted on 15 November 2022.

10.	Mr Metta is of the opinion that the AGM was conducted illegally and must be declared null and void and that the executive members have misused funds.

11.	On 15 July 2025 the AGM was set for 4 August 2025 by the District Administrator for Talasea, however on 11 August 2025 he advised that the AGM was adjourned indefinitely so ‘that the Dispute Settlement Authority of the ILG set a date to sort out your internal disputes and disagreements before calling the AGM.’

12.	Reliance was also placed on the affidavit of Mr Metta’s affidavit sworn on 30 October 2025 for the injunction. His evidence is that the ILG funds and resources are not properly shared and that the bank account should be frozen.

13.	Mr Taroa’s evidence was that Mr Kave appointed him as the Vice Chairman on 15 November 2022 but he considered that there was no proper notice and that Mr Kave hijacked the meeting and that the proper AGM should have been held on 16 November 2022 as notice was given for this date. He supported a petition for an AGM to be held on 17 November 2022. Despite the agenda stating that the Vice Chairman would be a signatory on the bank account, the only signatories are Mr Kave and his son.

14.	Mr Taroa’s evidence was that the ILG adopted the general ILG Constitution with requirements in s 7(3) for there to be meeting notices and for AGMs to be held every year and that there is serious default as no AGM has occurred.

15.	Mr Taroa sought that the ILG bank account should be audited going back to 15 November 2022 and a proper AGM be conducted.

16.	The defendants relied on the affidavit of Urban Kave sworn on 21 October 2025. Mr Kave’s evidence was that, he together with the rest of the executives were sworn in on 14 November 2022 and that the ILG was re-registered on 24 January 2024.

Submissions 

17.	The defendants’ submission was that the originating summons disclosed no controversy between the parties and material facts were required to be pleaded and not included in affidavits before the court. Reliance was placed on Aote & Ors v National Capital District Commission SC79 of 2025; SC2798 (Aote).
18.	In Aote, the majority of Anis and Carmody JJ referred to the judgement in Amos Ere v National Housing Corporation (2016) N6515 (Amos Ere) where Justice Harthorn set out relevant issues a plaintiff is required to establish in seeking declaratory relief in an originating summons at [12]:

a) There must exist a controversy between the parties;
 
b) The proceedings must involve a right;
 
c) The proceedings must be brought by a person who has a proper or tangible interest in obtaining the order;
 
d) The controversy must be subject to the court’s jurisdiction;
 
e) The defendant must be a person having a proper or tangible interest in opposing the plaintiff’s claim;
 
f) The issue must be a real one. It must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility.

19.	The plaintiffs identified the controversy as the failure by the ILG to comply with the ILG’s Constitution as to the conduct of the AGM. The first defendant refused to conduct another AGM. The plaintiff submitted that he has standing as he is a member of the ILG. The practical utility of the claim is access to ILG’s funds. This submission was supported by the second defendant.

20.	As to the freezing order, it was submitted that the bank account should be preserved to stop the defendants misusing the funds.

21.	The defendants submitted that the plaintiffs cannot rely on s 155(4) of the Constitution as this section can only be relied upon to protect primary rights in the absence of other relevant laws. They submitted that the injunction should be refused because it’s the same relief sought as in the final orders and the plaintiffs do not have an arguable case and there is no serious question to be tried and that the balance of convenience does not favour relief sought by the plaintiffs.

Consideration
22.	Order 4 rule 3(2) of the National Court Rules is in the following terms:

3. Where plaintiff may choose. 
...
(2) Proceedings—
(a) in which the sole or principal question at issue is, or is likely to be, one of the construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law; or
             	 (b) in which there is unlikely to be a substantial dispute of fact; or
 (c) in which a person is authorized by an Act, regulation or by these Rules to make an application to the Court or a Judge with respect to a matter that is not already the subject matter of a pending cause or matter, and no other mode of making the application is prescribed by that Act, or regulation or by these Rules,
are amongst those which are appropriate to be commenced by originating summons unless the plaintiff considers the proceedings more appropriate to be commenced by writ of summons.

23.	An originating summons is to be used to commence proceedings where the predominant issue is a legal one and not a factual one. The legal rights sought to be enforced or asserted or protected must be clear and precise.

24.	In this case the legal rights were entirely opaque, even if I considered all the evidence relied on by the plaintiffs and the second defendant.

25.	Working through the criteria identified in Amos Ere, the controversy between the parties was whether the AGM conducted on 15 November 2022 was consistent with the Constitution of the Kedopoho Incorporated Land Group.

26.	The plaintiff and the second defendant identified the right as paragraph 6 of the Constitution. Particularly, paragraph 6(1)(a)(i), (b) and (d).

27.	Paragraph 6 is concerned with the manner in which the group acts. It sets out that proper notice is to be given prior to the meeting as to when and where it is to occur. Paragraph 6(1)(d) states that a decision reached as to the notice requirements, timing and nature of the matter to be dealt with at the meeting shall not be invalidated by reason of a person not being present at the meeting as long as there is a quorum at the meeting.

28.	There is nothing in paragraph 6 of the Constitution that gives jurisdiction to this court to declare that if paragraph 6(1)(a) to (c) was not complied with, the land group acted in an ‘illegal or unlawful manner’ and its decisions are ‘null and void’.
29.	I was not taken to any legislation that may give jurisdiction to this court and there was no Act referred to in the originating summons apart from a reference to s 155(4) of the Constitution.

30.	The problem for the plaintiffs is that they were not able to identify any legal right that this court has jurisdiction to enforce.

31.	The Land Groups Incorporation Act Chapter 147 governs the operation of the fourth defendant and its constitution is mandatory pursuant to s 8 of the Act. 

32.	Part IV sets out the dispute settlement procedure in ss 20 to 25 in the following terms:

20 Application and interpretation of Part IV.
(1) This Part applies to disputes between—
(a) an incorporated land group and a member of the group; or
(b) members of an incorporated land group,
concerning the property or the affairs of the group, including—
(c) the distribution or disposal of any property or income of the group; and
(d) any transaction between the group and any of its members,
but, except by agreement, does not apply to any dispute between the group, or a member of the group, and a non-member.
(2) This Part also applies to disputes as to membership of, or the right to membership in, an incorporated land group.
(3) In this Part, a reference to a party to, or to a person interested in, a dispute includes a reference to a person whose interest in the dispute is real, though not necessarily or immediately financial.

21 Dispute-settlement authorities.
(1) In order to be recognized under this Act, each group must have at least one dispute-settlement authority.
(2) A dispute-settlement authority may be a person or a number of persons—
(a) specified by name; or
(b) specified by office or position; or
(c) determined in the manner specified in the constitution of the group, or a combination of any such persons.
(3) Notwithstanding Subsection (2), the parties to a dispute to which this Part applies may, with the consent of the group, agree on an ad hoc dispute-settlement authority in relation to the dispute.
			
22 Settlement of disputes.
All disputes to which this Part applies shall be dealt with, in accordance with Sections 23 and 24, by the dispute-settlement authority or a court having jurisdiction under Section 23.

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 Local 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
24 Law to be applied.
A dispute-settlement authority or a court dealing, under Section 23, with a dispute to which this Part applies—
(a) is not bound by any law or rule of law, practice or procedure other than this Act; and
(b) may inform itself on any matter in such manner as it thinks proper; and
(c) shall not make a decision about any matter without calling for argument and hearing any argument made on the matter; and
(d) shall endeavour to do substantial justice between all persons interested, in accordance with this Act, the constitution and any relevant custom.

25 Appeal and review under Part IV.
(1) Subject to this section, no proceedings or decision under this Part, whether before or by a dispute-settlement authority or by a court, are or is subject to appeal or review in any way.
(2) A person aggrieved by a decision of a dispute-settlement authority or a court under this Part may require that the decision be reviewed and, if necessary, the matter be reopened in accordance with this section.
(3) Subject to Subsection (4), the decision shall be reviewed in the first instance, as if the grievance were the subject matter of a new dispute, by an ad hoc dispute-settlement authority appointed in accordance with Section 21(3).
(4) If—
(a) an ad hoc dispute-settlement authority cannot be agreed on; or
(b) the decision on the review differs from the original decision and a person aggrieved by the difference so requires, the matter shall be reviewed by a Village Court consisting of not less than three Village Magistrates having jurisdiction over the members of the group, sitting with—
(c) the members of the original dispute-settlement authority; and
(d) the members of the ad hoc dispute-settlement authority (if any); and
(e) such other customary authorities having customary jurisdiction over the members of the group as the Village Court thinks appropriate, but the decision of the Village Court is the decision on the review.
(5) If in a case to which Subsection (4)(a) or (b) applies there is no Village Court referred to in Subsection (4), the jurisdiction of the Village Court under that subsection shall be exercised by a customary authority having customary jurisdiction over the members of the group, nominated by the Registrar after due inquiry and consultation with the members of the group.

33.	According to ss 22-23 of the Act, disputes such as the one before the court must be directed to the dispute settlement authority, which is an internal committee. If the dispute continues to be unresolved, in some circumstances set out in s 23 the dispute could be referred to the Village Court or the Local Court.

34.	Section 155(4) of the Constitution does not give original jurisdiction to the National Court or allow this court to waive noncompliance with another Act; Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81 per Kidu CJ, Kearney DCJ, Smith, Andrew, Kapi JJ. Where there is a clear statutory provision such as in ss 22-23 of the Land Groups Incorporation Act (Chapter 147), it is to be applied and an inherent power to do justice in the circumstances gives way; see discussion by Andrew J.

35.	Section 155(4) of the Constitution is not the source of any substantive rights; SCR No 2 of 1981 [1981] PNGLR 150 per Kidu CJ:

The provision under reference does not vest in the National Court or the Supreme Court the power to make orders which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law. Section 155 (4) exists to ensure that these rights or interests are enforced or protected if existing laws are deficient to render protection or enforcement.
 
36.	The plaintiffs made no submission that existing laws are deficient to render protection or enforcement, in fact the plaintiffs made no reference to any specific laws.

37.	In Powi v. Southern Highlands Provincial Government (2006) SC844, Jalina, Gavara-Nanu & Kandakasi JJ stated that where remedies are already provided for under another law, s 155(4) of the Constitution does not apply.

38.	Despite the court raising that the plaintiffs may consider filing a statement of claim setting out the material facts, there was no application to seek leave to do so or to amend the originating summons by the plaintiffs.

39.	I consider in this case, that the plaintiffs have not satisfied the court that it has jurisdiction, nor has the plaintiff identified any legal right that can be enforced and as such the whole of the proceeding is dismissed as it discloses no cause of action.
40.	Even if I did not dismiss the proceeding pursuant to Order 12 r 40(1)(a) of the National Court Rules I would not have granted the mandatory interlocutory injunction sought by the plaintiffs as I do not consider that the plaintiff has a serious case, that is, a real prospect that the plaintiff would succeed at the trial based on the reasons set out above. 

Orders

41.	I make the following orders:

a.	The whole proceeding is dismissed pursuant to Order 12 rule 40(1)(a) of the National Court Rules as the originating summons filed on 6 October 2025 discloses no reasonable cause of action.
b.	The plaintiffs pay costs of the first, third, fourth and fifth defendants on a party-party basis as agreed or assessed. 
________________________________________________________________
Lawyers for the plaintiffs: Mokae & Associates
Lawyers for the second defendant: Kumbari & Associates
Lawyers for the first, third, fourth and fifth defendants: Kusip Lawyers