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Ain v Bilinga [2025] PGNC 321; N11464 (4 September 2025)

N11464

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS(JR) NO. 284 OF 2023

BETWEEN
RAPHAEL AIN, MILFRED LAVIDA & JOHN KIVORONG, BRIDGIT BAUN, THOMAS SABO JNR & LUCY SABO-KELIS for and on behalf of Pue Clan of Sentral Local Level Government, New Ireland Province
Plaintiff

AND
RAPHAEL BILINGA AND ISSAC LAWAXUT
First Defendant

ORIM KARAPO sitting as a Local Land Court Magistrate at Kavieng
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

KAVIENG: COLLIER J
4 SEPTEMBER 2025

PRACTICE AND PROCEDURE – judicial review of a decision of the Local Land Court – whether there was a dispute mediated before the Local Land Court – whether Land Mediators followed the required process pursuant to the Land Disputes Settlement Act – whether Pue Clan had interest in the land in question for the purposes of the Act – denial of procedural fairness – error of law

The plaintiffs argue that their clan are the customary owners of relevant land. In 2012 the first and second defendants applied to the Local Land Court at Kavieng to settle a land agreement over this particular area of land. The plaintiff claims that the Local Land Court approved an agreement to the effect that one of the defendants was the proper owner of the relevant land. The plaintiff alleged the Local Land Court failed to comply with procedures under the Act, designed to ensure procedural fairness in decision-making, failed to take into account relevant considerations, and erred on the face of the record in this decision.

HELD: It is unlikely that there was a dispute to be mediated between the first and second defendants. There is extensive evidence in the affidavits filed that the Pue Clan had an interest in the land. It is unlikely that the mediators walked the boundaries of the land as required. The decision of the Local Land Court was attended by a denial of procedural fairness, a failure to take into account relevant considerations, and error on the face of the record, such that it should be set aside.

Cases cited
Jimmy v Clan [2010] N4101
Kani v Barrick (Niugini) Ltd (formerly Placer Dome (PNG) Ltd) [2024] SC255
Kekedo v Burns Philp (PNG) Ltd [1988-1989] SC373

Counsel
Ms S Tongam, for the plaintiff
Mr R Bilinga, in person, for the defendants

1. COLLIER J: Before the Court is an application for judicial review of a decision of the Local Land Court at Kavieng dated 13 September 2021 in LLC NO. 70 of 2012. Leave to file the application for judicial review was granted on 16 October 2024.
2. The plaintiffs sought judicial review by a Notice of Motion filed on 14 July 2025. They claimed the following relief:
   • (1) An order in the nature of certiorari pursuant to Order 16 Rule 1(1) of the National Court Rules 1983 (National Court Rules) to quash the decision of the Local Land Court dated 13 September 2012.
   • (2) An order in the nature of mandamus pursuant to Order 16 Rule 1(1) of the National Court Rules to refer the dispute over traditional land boundaries of Texorot Land for mediation to be held pursuant to the procedures under ss 17, 18 and 19 of the Land Dispute Settlement Act 1975 (Act) to identify and establish traditional land boundaries of Texorot land from other neighbouring customary lands.
   • (3) An order to the Kavieng Provincial Court Magistrate/Senior Provincial Magistrate to appoint land mediators and supervise the mediation process closely to identify the boundaries of the land in dispute.
   • (4) Any other orders this Honourable Court deems fit.
   • (5) Cost be in the cause.
3. It appears from the file that the defendants have had very minimal engagement with the proceedings. All relevant material has been filed by the plaintiffs, who are represented by lawyers.
4. The matter came before the Deputy Chief Justice on 8 July 2025. On that date there was no appearance by the defendants. His Honour made the following Orders:
   • (1) The Plaintiff shall file and serve a motion for the hearing of the substantive review by no later than 16 July 2025.
   • (2) The Plaintiff to also file and serve a draft index to the review book by 16 July 2025.
   • (3) The Defendants to respond to the draft index to the review book by 30 July 2025.
   • (4) By 16 August 2025 the Plaintiff to file and serve the review book, based on the index settled between the parties.
   • (5) Parties to file and serve their respective submissions and come ready for hearing of the substantive review on 02 September 2025 at 9:30am before Her Honor Collier J.
   • (6) Any failure to comply with these orders will result in the proceeding if the defaulting party is the Plaintiff, but if the defaulting party is the Defendant, the Court will proceed to hear the Plaintiff and if need be grant the reliefs sought.
   • (7) The time for the entry of these orders is abridged to take place forthwith upon the Court signing the Orders.
5. It appears from the Court file that the plaintiffs complied with the Orders of his Honour. The defendants did not. In accordance with Order (6) of his Honour, when the matter came before me on 3 September 2025, I proceeded to hear the plaintiff who was represented by Counsel. Mr Bilinga of the defendants attended in person.
6. The plaintiffs relied on written submissions. Mr Bilinga submitted that he would like extra time to brief lawyers. In circumstances where this matter was originally filed two years ago, I was not prepared to allow the defendants extra time to brief lawyers and proceeded to reserve my decision.

BACKGROUND

7. Some background is set out in a Statement Pursuant to Order 16 Rule 3(2)(a) of the National Court Rules filed by the plaintiffs on 19 October 2023.
8. The plaintiffs are members of the Pue Customary Clan in Sentral Local Level Government, New Ireland Province (Pue Clan). They submit that the Pue Clan members are the traditional landowners of Pue customary land within Lavatbura Village in Sentral LLG, New Ireland Province.
9. The second defendant is now deceased. He was of the Kebo Clan of Sentral LLG, and a relative of the Lauxas Clan, which is a sub-clan of Konogo Clan of Lavatbura village in Sentral LLG.
10. On 3 August 2012 the first and second defendants lodged an application with the Local Land Court at Kavieng over Texorot land situated at Lavatbura Village. On 13 September 2012 the first and second defendants obtained a decision of the Local Land Court (Mr Orim Karapo LLC Magistrate, Mr Orim Turave (Land Mediator) and Mr Boas Kolomes (Land Mediator)) in the following terms:
    1. Parties before the Court RAPHAEL BILINGA and ISSAC LAWAXUT
    2. Name of Land, and if applicable, description or boundaries : TEXOROT
    3. Witness to location of Land:
    4. Decision of the Court

We agree that, by our custom the person Raphael Bilinga and Family shall be the owners of the subject Land and all things upon it, and that they may nominate their heirs and successors and they shall have all the rights to use and dispose of the subject Land or any portion of the subject Land as they desire and that such agreement is traditional and customary.
We certify that the above and any of the attachments hereto are a true record of the proceedings of the Local Land Court and that the reasons for decision and the terms of the order were explained to the parties and the Land was inspected and the boundaries walked in company of the parties.

11. The grounds of review are detailed, and in the nature of submissions. After referring to the mediation decision of the Local Land Court, the grounds relevantly continued:

...

(e) There was no dispute to be mediated. This was merely an agreement between the two parties which was reported as a dispute where the Land Mediators were appointed to mediate.
(f) The mediation records before the Local Land Court do not reflect neighbouring clan witnesses’ consent to this mediation agreement reached by the First and Second Defendant and recorded by the Land Mediators.
(g) The mediation records before the Local Land Court does not confirm Mediator’s waled the land boundaries of Texorot land in the presence of witnesses from neighbouring clan members.
(h) The mediation records before the Local Land Court does not produce a sketched map showing the traditional land boundaries of Texorot land with that of other neighbouring clan lands.
(i) The mediation reords before the Local Land Court does not record a dispute over the said land, rather, reflects an agreement between the First Defendants to establish traditional landownership of Texorot Land through Land Mediators and Local Land Court Orders reflecting same.
(j) There are no records of any witnesses attending this mediation and consenting and or approving to the traditional land boundaries mentioned in the medition statements.
(k) The mediation records show there was only one mediation held between the parties and an Application for Approval of Agreement was lodged at the Kavieng Local Land Court on same day, 13^th August 2012.
(l) The Pue Customary landowners were never made aware of such a ‘dispute’ and mediation regarding this Texorot land until recently when the First Respondent allowed logging companies to trespass onto Pue Customary land where a land boundary issue arose between the Pue Customary Landowners and the First Defendant.
(m) The Pue Customary Landowners then learnt of this existing of this Local Land Court Order which is now the subject of this Judicial Review proceeding.

(errors in original)

12. The plaintiffs also asserted:
    • The Local Land Court did not ensure the Application for Approval of Agreement satisfied all requirements under the Land Dispute Settlement Act before it was approved.
    • The Local Land Court record of proceeding does not confirm attendances in Court of any witnesses from neighbouring clans to confirm terms of the agreement before the Local Land Court.
    • The Local Land Court proceeded to approve the mediation agreement on 13 September 2012 making the terms of the agreement a Local Land Court Order now binding.
    • In absence of proper sketching (map) of the land boundaries showing neighbouring clans land for which the Court Order was made, the only authority to review this Local Land Court Order and remit the dispute for the boundaries and land marks to be properely recorded among all neighbouring clans is the National Court of Justice Review.

(errors in original)

EVIDENCE

13. The plaintiffs relied in particular on two affidavits, namely:
    • An affidavit verifying facts pursuant to Order 16, Rule 3(2)(b) of the National Court Rules, sworn by plaintiff Mr Raphael Ain on 13 October 2023; and
    • An affidavit in support sworn by plaintiff Mr Thomas Sabo Junior on 11 July 2025.
14. Relevantly in his affidavit, Mr Ain deposed:
    • He is a clan member, elder and leader of the Pue Clan, who are traditional landowners of Pue traditional land located within Lavatbura Village, Sentral LLG, New Ireland Province.
    • As at the date of his affidavit, the Pue Clan members had only recently learned of the Local Land Court Order of 13 September 2012, becoming aware of it when Mr Raphael Bilinga brought logging companies onto Pue Customary Land. At that point the Pue Clan members approached the logging company telling company employees that they were encroaching into Pue Customary Land, however the logging company ignored the Pue Clan members and relied on the Local Land Court Order of 13 September 2012.
    • Neither he nor other Pue Clan members were aware of a mediation in respect of the relevant land in 2012.
    • As far as he is aware, Mr Raphael Bilinga is from Katangorongo and Mr Aisak Lawaxut is from the Kebo clan.
15. Mr Ain also gave evidence that:
    23. To the North (Kavieng side) the Pue Clan land shares a boundary with Lauxas Clan. The Land boundary with Pue Clan and Lauxas starts from Pamaxut following the dirt road constructed during the logging operations through Pue-Konos TRP Logging Operations Evasun, where Lauxas clan land stops and the Pue Clan shares a boundary with Konoxo Clan, from the Poxowas Ranges which shared boundaries runs parallel and ends on the West Coast at Kodan (Katedan River) Lambu Village.
    24. At the Southside, the Pue Clan Land shares a boundary with (to the south of where Pue Customary Land is), Melexabang Clan land boundary and it starts at Sumbaba and to Lawasimen. At Lawasimen Maraxulep Clan land and Pue land share boundary together with Pue Clan up to Kondan Lambui Village on West Coast and Maraxulep Clan land boundary stops at Ugana.
    25. From the coast side (to the East where Pue Customary Land is) the coastline starts from Sumbaba, Lagaraga, Tais Wara, Erima Diwai (Sunganda), Wara Awuwut.
16. The affidavit of Mr Thomas Sabo Junior is consistent with the evidence of Mr Ain.

SUBMISSIONS OF THE PLAINTIFFS

17. In summary, the plaintiffs submitted that the records obtained from the Local Land Court, which were annexed to the affidavit of Mr Thomas Sabo Junior, evidenced that:
    • the mediators did not walk the boundaries of the area in dispute with the parties as required under s 18(2)(a) of the Act;
    • it is unclear whether the mediators were informed of all prominent natural features located on the land;
    • the sketch map attached to the decision of the Local Land Court does not contain any boundary descriptions, making it impossible to identify where the traditional boundaries lie;
    • the mediation records do not record names of witnesses to testify to the position of the boundary as determined in the agreement.
18. Their grounds of review could be summarised as follows as follows:

3.1 Breach of procedures designed to ensure procedural fairness in decision-making as prescribed under Section 18 and Section 19 of the Land Dispute Settlement Act 1975.
3.2 The Mediators and the Local Land Court failing to take into account relevant considerations – public acknowledgment of the consented mediation agreement; approval of the traditional land boundaries by neighbouring claim leaders/ members calling of witnesses.
3.3 Error of law on the fact of the record.

CONSIDERATION

19. Principles for the Court to consider in determining an application for judicial review are well settled. Recently the Supreme Court in Kani v Barrick (Niugini) Ltd (formerly Placer Dome (PNG) Ltd) [2024] SC255 observed:
    16. Earlier leading authorities on judicial review are the twin decisions in Avia Aihi v. The State [1981] PNGLR 81 and Avia Aihi v. The State (No 2) [1982] PNGLR 44 (Kidu CJ, Kearney DCJ, Greville–Smith, Andrew & Kapi, JJ, which make it clear that an applicant must make out a case and the Court must find on the merits of the application that the applicant has demonstrated “exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity”. An insightful discussion of these principles by Deputy Chief Justice Kearney is set out in those cases.
    17. Subsequent decisions of the Supreme Court have followed these principles. The decision in Independent State of Papua New Guinea v. Colbert [1988] PNGLR 138 (Kapi DCJ, Bredmeyer & Amet, JJ) referred to applicable case law up to that point and concluded that the discretionary power of the Court should be exercised only where:

(a) it is in the interest of justice;
(b) there are cogent and convincing reasons and exceptional circumstances, where some substantial injustice is manifest or the case is of special gravity; and
(c) there are clear legal grounds meriting a review of the decision.

20. Deputy Chief Justice Kapi (as his Honour then was) observed in Kekedo v Burns Philp (PNG) Ltd [1988-1989] SC373 at 124:

The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error law, commits a breach of natural justice, reaches a decision which no reasonable tribunal court have reached or abuses its powers.
The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process.

21. It is well-settled that the National Court has no jurisdiction to determine the question of ownership of customary land: Jimmy v Clan [2010] N4101 per Cannings J at [11]. The issues presently before the Court however are referable to the claims of the plaintiff that the manner in which the Local Land Court at Kavieng made its decision revealed an error on the face of the record, or alternatively a denial of natural justice to the plaintiffs.
22. The power of the Local Land Court to make a determination of customary land is regulated by the Act. Section 26 provides:

Subject to Section 3 and 4 and to this Part, a Local Land Court has jurisdiction over and in relation to–
(a) a dispute as to an interest in land where the land in dispute is situated wholly or partly within the province for which the Court is established; and
(b) the approval of agreements under Section 19; and
(c) a dispute to which Section 29 applies; and
(d) any other action or decision that it may be required to take under this Act.

23. “Dispute” is defined to have the meaning ascribed by s 3 of the Act, namely disputes as to interests in customary land, or as to the position of boundaries of any customary land. The ordinary meaning of “dispute” as defined by the Oxford Dictionary is:

The act of disputing or arguing against; active verbal contention, controversy, debate.

24. Relevantly, it follows that a Local Land Court has jurisdiction in respect of disputes, that is, where there is a controversy concerning interests in customary land.
25. The primary function of Land Mediators under the Act is to assist in the attainment of peace and harmony in the Land Mediation Division or Divisions for which they are appointed by mediating in, and endeavouring to obtain the just and amicable settlement of, disputes: s 15(1) of the Act.
26. Similarly, it is inherent in the term “mediation” that parties are in dispute, as is clear from the ordinary meaning of the word “mediation” as defined in the Oxford Dictionary:
    1. Agency or action as a mediator; the action of mediating between parties in dispute; intercession on behalf of another
    2. ...
    100. The process of attempting to settle a dispute without recourse to litigation, through negotiation conducted by a neutral intermediary (now frequently a professional individual or organization employed for this purpose)...
27. The Act provides, inter alia, that a Local Land Court is not bound by any rule of law, evidence, practice or procedure other than the Act, and may inform itself on any question before it in such manner as it thinks proper (s 35(1)(a), (c)). However, where a Local Land Court proceeds to hear and determine a dispute, it is bound, as far as is practicable, by the same rules of law, evidence, practice and procedure as those by which the Village Court or Local Court having jurisdiction in the matter would be bound (s 35(3)). Section 39 of the Act provides for Orders generally, including that the Local Land Court shall apply the customs of the area generally (s 39(2)) and consider those customs. Customary interests in relation to land which can be taken into consideration include those set out in s 39(3).
28. Section 17(1) of the Act empowers a Land Mediator to mediate a dispute where he or she is of opinion that:

(a) a dispute exists as to interests in land situated wholly or partly within the area of the Land Mediation Division or Divisions for which he is appointed; and
(b) mediation as a means of settling the dispute may be successful.

29. Section 17(2)(c) provides, inter alia, that a Land Mediator shall mediate a dispute in any Land Mediation Area when requested to do so by a Local Land Court or a Local Land Magistrate.
30. Finally, and relevantly s 28 of the Act provides:

POWER TO MEDIATE.
(1) At any stage of a hearing before a Local Land Court, the Court may mediate between the parties in order to reach a just, effective and amicable agreement between the parties to the dispute.
(2) The Local Land Court may adjourn a hearing, if it appears that by doing so an agreement may be arrived at between the parties.
(3) Where a Local Land Court mediates a dispute under this section, Sections 18 and 19, with the necessary modifications, apply as though the mediation were a mediation under those sections.

31. In the present case the record of proceedings indicates a decision by the Local Land Court determining ownership of customary land under the Act. The decision of the Local Land Court followed a “Request to Mediate a Dispute” dated 3 August 2012, signed by the Local Land Court Magistrate, and naming the “dispute” as between Raphael Bilinga and Issac Lawaxut. The record of the Local Land Court includes an “Application for Approval of Agreement” dated 12 October 2012, where – again – the parties allegedly in dispute were named as Raphael Bilinga and Issac Lawaxut.
32. I am satisfied that the decision of the Local Land Court dated 13 September 2012 was attended by a denial of procedural fairness, a failure to take into account relevant considerations, and error on the face of the record, such that it should be set aside. In particular, and in the complete absence of evidence to the contrary in the present case, I find that:
    • It is unlikely that there was a “dispute” to be mediated between Raphael Bilinga and Issac Lawaxut relevant to the ownership of customary land, in circumstances where they allegedly agreed (as stated in the “Application for Approval of Agreement”) that the rightful owner of the Texorot Land was Mr Bilinga because Mr Lawaxut was “now old”. Rather, the evidence indicated that there was no dispute at all within the meaning of the Act.
    • There is extensive evidence, as is clear from the affidavits filed in the present proceedings, that the Pue Clan had an interest in the Texorot Land such that their interests should have been taken into consideration as a party with standing in any determination of customary land ownership.
    • The maps annexed to the affidavits in the present proceedings show that the Pue Clan clearly had an interest in the area. I accept the submission of the plaintiffs that it is unlikely the mediators walked the boundaries of the Texorot Land with Mr Bilinga and Mr Lawaxut as required by s 18(2)(a) of the Act. I have formed this view on the basis that, had the mediators walked the boundaries, they would in likelihood have seen Pue Clan members.
    • Section 18(2)(d) provides that if an agreement is reached between the parties to a dispute, the mediators shall record the names of not less than three witnesses who are prepared to testify to the position of the boundary as determined in the agreement. In this case, no witnesses were identified. Not only does this constitute a breach of the Act, it strongly suggests that the mediators failed to have regard to evidence of any witnesses supportive of the ultimate determination of the Local Land Court.

CONCLUSION

33. In the circumstances I am satisfied that the plaintiffs are entitled to the relief they seek.

THE COURT ORDERS THAT:

1. An order in the nature of certiorari pursuant to Order 16 Rule 1(1) of the National Court Rules 1983 to quash the decision of the Local Land Court dated 13th September 2012.
2. An order in the nature of mandamus pursuant to Order 16 Rule 1(1) of the National Court Rules 1983 to refer the dispute over traditional land boundaries of Texorot Land for mediation to be held pursuant to the procedures under Section 17, Section 18 and Section 19 of the Land Dispute Settlement Act 1975 to identify and establish traditional land boundaries of Texorot land from other neighbouring customary lands.
3. An order to the Kavieng Provincial Court Magistrate/Senior Provincial Magistrate to appoint land mediators and supervise the mediation process closely to identify the boundaries of the land in dispute.
4. Costs be in the cause.

Lawyers for plaintiff: Sabo’s Lawyers