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Dako v Kariu [2025] PGNC 345; N11487 (12 September 2025)

N11487

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS(JR) NO. 349 OF 2024 [IECMS]

BETWEEN:
HARRY DAKO (Chairman), BEN MOE (Vice Charman) & Executive Members of Sapulo Incorporated Land Group
First Appellant/Applicant

AND:
SAPULO INCORPORATED LAND GROUP NO. 845
Second Appellant/Applicant

AND:
HIS WORSHIP MARK SELEF KARIU – In his capacity as the Kimbe Provincial Land Court Magistrate
First Respondent

AND:
JAMES LOGAH – Chairman for and on behalf of his Executives for the Talasea Incorporated Land Group
Second Respondent

AND:
TALASEA INCORPORATED LAND GROUP
Third Respondent

WAIGANI: DINGAKE J
16 JUNE, 12 SEPTEMBER 2025

JUDICIAL REVIEW - plaintiffs seek review of court orders granted by the first defendant in recognizing the defendants as the legally registered ILG – grounds of review – consideration of - relief sought by applicants are equitable reliefs to be granted at the discretion of the Court – insufficient material warranting the grant of relief sought – judicial review dismissed

Cases cited
Isaac Lupari v Sir Michael Somare, MP – Prime Minister &
Chairman of the National Executive Council [2008] PGNC 121; N3476

Counsel
Mr. Brian Lakakit, for the appellant/applicant
Ms. Pauline Yom, for the State

JUDGMENT

1. DINGAKE J: INTRODUCTION: This is my judgment with respect to substantive judicial review application brought by way of Notice of Motion, pursuant to O16 R5(1) of the National Court Rules filed with this court on the 21^st of May 2025.
   
2. The relief sought by the Plaintiff is long and runs into about two (2) pages. Essentially, the Plaintiff is unhappy with the decision of the First Respondent dated the 10^th of August 2022 and seeks to have it quashed. The subject decision is that of the Kimbe Local Land Court dated the 15^th of December 2021.
   
3. The essential features of the Kimbe Local Land Court Order dated 15^th of December 2021, are that:
   
   • (a) An Order and Declared that the Sapulo Incorporated Land Group No#845 is a legally registered ILG herein
     
   • (b) Pursuant to Court Orders of OS NO 323 OF 2021, Compliance of the National Court Orders under the powers bestowed under Section 27 of the Land Dispute Settlement Act, the Kapuluk Gravel Pit is hereby verified, declared under the Sapulo ILG NO# 845 accordingly
     
   • (c) An Order and Declared that the LingaLinga Plantation was dealt with in His Worship Tera Dawai’s Decision on the 08^th October, 2008 and now confirms that and is one of the properties among others in the Sapulu ILG Property Listing
     
   • (d) An Order and Declared that Kapuluk Gravel Pit is a customary land and sits within the Sapulo ILG accordingly and the Complainants are the customary landowners of the Kapuluk Gravel Pit accordingly herein
     
   • (e) Pursuant to Sections 3 and 27 of the Land Dispute Settlement Act, the Court declares that Sapulo clan are the customary landowner of the land, river, mountain etc what’s being registered in the Property listing under the Sapulo ILG NO# 845 forthwith
     
   • (f) Pursuant to Section 3 of the Land Dispute Settlement Act, the Court recognizes Sapulo Incorporated Land Group No# 845, gazettal Notice is 190 as a legally and fully registered Incorporated Land Group as legal entity and further recognizes its executives for the people and clan group of Sapulo Clan members herein
     
4. The Plaintiff also seeks a declaration:
   
   • (a) The Local Land Court decision dated the 8^th of October 2008 by His Worship Tera Dawai is valid and effectual for all purposes;
     
   • (b) That the recognition of the Sapulo Clan (who are members of the Sapulo Incorporated Land Group (ILG)) by William John Red Report No. NB 235, dated 24^th August 1962 (referred to as the Land Titles Commission) as landowners of the Kapulok Customary land is valid and effectual for all purposes;
     
   • (c) That the Kapulok gravel extraction site customary land is under the Property Listings of the Sapulo Incorporated Land Group (ILG), owing to its first registration with the Lands & Physical Planning Department on the 26^th of September 2016, and thus the Third Respondent who registered thereafter, on the 10^th of June 2017 cease to claim customary ownership rights over the same Kapulok customary land, by operation of Sections 24 (1) (b) & 26 (1) (a) (b) and (c) of the Land Registration Act 1981;
     
   • (d) That the First Respondent made an error in considering Lingalinga land, which is a freehold lease, as the subject of appeal before the Provincial Land Court, when in fact the customary land, subject of the appeal was the Kapulok Customary Land;
     
   • (e) That the First Respondent was unreasonable and made an error in giving effect to and enforcing a purported decision of a Provincial Land Court of 22 June 2010 that fixed 18 October 2008 as the date on which the Local Land Court made the decision in favour of the Applicants, when the Court record shows that there was only one decision made on the 8^th of October 2008 by the Local Land Court;
     
   • (f) That the decision of the First Respondent dated 10^th August 2022 is unreasonable, invalid and of no legal effect;
     
   • (g) That the First Respondent exceeded its jurisdiction, in dealing with and determining two separate Local Land Court decisions, namely, the decision of 8^th August 2008 and 15^th December 2021, at the same time, thereby in breach of Section 53 of the Land Dispute Settlement Act, 1975;
     
   • (h) That the Provincial Land Court presided by the First Respondent was not properly constituted, contrary to Section 53 of the Land Dispute Settlement Act 1975, and thus, the determinations and Court Orders emanating thereof are invalid and unlawful;
     
   • (i) That any form of development and or use of customary land agreement/s relating to Kapulok customary land or otherwise, entered into between the Second and Third Respondents, their servants and or agents with any developer or anyone else is illegal, invalid and of no legal effect.
     
5. Additionally, the Plaintiff also seek an order reinstating the decision of the Local Land Court dated the 15^th of December 2021 that recognizes the Sapulo Incorporated Land Group (ILG) as the customary landowner of the Kapulok Customary Land, including the Kapulok Gravel Extraction site land.
   

GROUNDS OF CHALLENGE

6. The Plaintiff relies on four (4) grounds to challenge the decision of the First Respondent namely:
   
   1. Ultra vires
   2. Error of law
   3. Wednesbury’s unreasonableness
   4. Natural justice
      
7. Under the Ground of Ultra vires, the plaintiff says that:
   
   1. The First Defendant failed to confine its decision on 15 December, 2021, which was the subject of appeal, then dealing and determining together with the decision of 08 October 2008 thereby in breach of Section 53 of the Land Dispute Settlement Act;
      
   2. The First Defendant failed to consider that the Local Land Court Orders of 15 December, 2021 arose out of an Order of the National Court Order of 12 November 2021 directing parties to determine ownership issues in relation to the Kapulok Gravel Extraction Site land and His Worships determination extended to consider Lingalinga Plantation land (whether freehold or customary land) is irrelevant, thereby in breach of Section 53 of the Land Dispute Settlement Act;
      
   3. The First Defendant failed to consider that the land, Kapulok Gravel Extraction site is under the Property Listing of the Sapulo ILG and as such, issues of ownership in relation to the said land shall not arise.
      
   4. The Provincial Land Court was not properly constituted as the Land Magistrate (First Defendant) sat alone, thus offending Section 47 of the Land Dispute Settlement Act. This precondition goes to the jurisdiction and Court Orders or determination emanating thereof are void ab initio or invalid.
      
   5. The First Defendant made irrelevant considerations on the issue of Kapulok Gravel Extraction Land. There was no interested person showing any interest either by way of filing an application for joinder in the proceedings, LLC No 128 of 2008 or PLC No 2 of 2022 and thus it was an irrelevant consideration by the First Defendant to suggest that individuals having interest over the Kapulok land should have been involved in the proceedings.
      
8. With respect to the ground of error of law, the Plaintiff says that the Local Land Court decision of 8^th October 2008 is a binding decision which the First Respondent failed to give effect to. The Plaintiff/Applicant also say the First Respondent failed to consider that the notice of appeal filed by the Appellant to appeal against the decision of the 8^th of October 2008 was lodged some 18 months after the time of the making of the orders by the Local Land Court which is a breach of Section 54 (1) & (2) of the Land Dispute Settlement Act.
   
9. With respect to Wednesbury’s unreasonableness, the Plaintiff/Applicant say that the decision of the First Respondent was unreasonable in that, among other things, the First Respondent made an error in holding that the decision of the Provincial Court of the 22^nd of June 2010 was valid and enforceable, that no reasonable tribunal would have made the decision the First Respondent made and, that the Respondent failed to give a reason for not considering the letter of 10^th August 2021 from the Land Court Act that confirmed there wasn’t any appeal lodged in relation to the Local Land Court Orders of 8^th October 2008.
   
10. On Natural Justice, the Plaintiffs/Applicants say that the First Respondent failed to give reasons on the issue of Statutory time limitation under section 54 (1) and (2) of the Land Dispute Settlement Act when that issue was raised by the Respondents in the Provincial Land Court in the proceedings in the Provincial Land Court proceedings PLC 02 of 2022- In the matter of appeal pursuant to Section 54 of the Land Dispute Settlement Act between James Logah in his capacity as a Chairman of Talasea Incorporated Land Group & Talasea Incorporated Land Group (Inc) vs Harry Dako & Ors.
    

EVIDENCE

11. The Applicants rely on the following affidavits:
    
    1. Affidavit Verifying Facts of the First Plaintiff sworn on the 19 December, 2024 and filed on 23 December, 2024 – Document No. 4;
       
    2. Affidavit in Support of Harry Dako sworn on 19 December, 2024 and filed on 23 December, 2024 - Document No. 5;
       
    3. Affidavit on Delay of Harry Dako sworn on 19 December 2024 – Document N0. 6;
       
    4. Affidavit of Paul Samario Document No. 7 filed on 1 May 2025.
       
12. Given the relief sought reproduced earlier, the Plaintiff was obliged to canvass sufficient facts to ground each relief sought, by indicating with sufficient particularity what exactly happened leading to the decisions sought to be impugned. I have not found the affidavits referred to above useful; they seem to me convoluted and I am unable to decipher what actually happened.
    
13. It would seem to me that the main factual evidence in this judicial review application is set out in the affidavit of Paul Samario filed on the 1^st of May 2025. Essentially Mr. Samario says that the administration officer of Sapulo ILG was aware that the Department of Lands and Physical Planning registered Sapula Incorporated Land Group (ILG) on the 26^th the September 2016 and issued the certificate and Talasea Incorporated Land Group (ILG) was purportedly registered or lodged its application on the 10^th of June 2017 and a certificate was not issued at the time.
    
14. He also says that the Department of Lands and Physical Planning should not have accepted the application by Talasea concerning the same customary land with the same property listings including the Kapulok Gravel Pit customary land. According to Mr Samario, the Talasea Incorporated Land Group filed the Notice of Appeal on 18 January 2022 in the Provincial Land Court to challenge the decision of the Local Land Court of the 15^th of December 2021 by His Worship Marcus Nandape.
    
15. The balance of the Affidavit of Mr. Samario, particularly paragraphs 6, 7 and 8 contain impermissible opinion and or arguments and not factual averments.
    
16. The main affidavit of Mr. Samario is relatively short and inadequate given the relief sought. There are hardly any material and sufficient factual averments relating to the decision sought to be reviewed namely the decision of the First Respondent dated the 10^th of August 2022 that the Applicant wishes to quash.
    
17. Similarly, in the supporting affidavit of the applicant, there is no sufficient factual averment relating to the decision of the Kimbe Local Land Court of the 8^th of August 2008 and 15^th of December 2021.
    
18. The affidavit of Mr. Samario that I sought to summarise does not make any adequate or comprehensive averments relating to the claim that the Sapulo Clan are the Landowners of the Kapulok Customary Land and/or the Kapulok Gravel Extraction site customary land owing to its first registration with the Land and Physical Planning Department on the 26^th of September 2016.
    
19. On the evidence before me, there is hardly any sufficient factual averment for me to make any credible informed assessment relating to all the grounds canvassed by the Applicant. Consequently, on the evidence, I find that none of the grounds canvassed to impugn the decision sought to be reviewed had been established on a balance of probabilities.
    
20. The reliefs sought by the Applicant are equitable reliefs to be granted at the discretion of the Court and the Court may refuse to grant the said relief if, as in the present case, there is insufficient material warranting the granting of the relief sought.
    
21. In the result, the Court orders:
    
    • (a) The Judicial review proceedings are dismissed.
      

_____________________________________________________________
Lawyers for the appellants/applicants: Allens Linklaters
Lawyers for the first respondents: Solicitor General