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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CIA 32 OF 2025
PHILIP MUNGALO,
MARTIN PAIWAPA,
ANGALO PUNDIPUNDI, &
AIALWE WATOLO
Appellants
V
KOLI SANDA
First Respondent
BARRICK (NIUGINI) LTD
Second Respondent
NEW PORGERA LTD
Third Respondent
WABAG: ELLIS J
31 OCTOBER, 2 DECEMBER 2025
APPEAL FROM DISTRICT COURT – Appeal from rejection of set aside motion – correct issues identified and considered by Magistrate – miscarriage of justice identified – Village Court entitled to determine use and occupation of customary land but not ownership – observations as to lack of Land Court in Porgera
Cases cited
Agalu v Eno [2005] N2904
Boating v The State [1990] PNGLR 342
Kupa v Joseph [2023] N10813
Joseph Bonga v Jacklyn Mamat (2018) N7284
PNG Pipes & Anor v Majo Sefa (1998) SC592
Yama v Bank of South Pacific (2008) SC921
Counsel
L. Sikipris, for the appellant
No appearance for the first respondent
C. Joseph, for second and third respondents
JUDGMENT
1 ELLIS J: On 25 January 2024 Koli Sanda (Sanda) commenced proceedings in the District Court against the four appellants and Barrick (Niugini) Limited (Barrick) which alleged that he is the owner of the customary land known as “Homeaka” prior to 1987 when he and his family were disposed by a tribal fight with the contended result that, when the Porgera mine commenced operations, payments were made by Barrick to the appellants, who are not the customary owners of that land. It was said that, as Sanda and his family had claimed back ownership of Homeaka, Barrick had been requested to pay him and his family for the use of that land. The orders sought were (1) that Barrick be restrained from making payments to the appellants, and (2) that the matter be referred to mediation, both orders being based on the provisions of the Land Disputes Settlement Act 1975 (the LDSA).
2 A Notice of Motion was also filed, seeking an order that, pending determination of the substantive proceedings, Barrick be restrained from making payments to the appellants. An affidavit in support from Sanda was also filed.
3 On 5 February 2024, Sanda’s elder brother (Lode Sanda) swore an affidavit in which he asserted that he and his brother were from the Maipani tribe, Okoyepe clan and that the appellants were from different clans:
(1) Philip Mungalo was from the Hanga clan and not from the Maipani tribe,
(2) Martin Paiwapa was from the Timain clan and not from the Maipani tribe,
(3) Angalo Pundipundi was from the Kieowa clan within the Paipangi tribe but does not own Homeaka, and
(4) Aiyale Watolo is from the Aipakani clan and not from the Paipani tribe.
4 His evidence was that (1) in 1987 the Okyope clan and the Kieowa clan fought and his brother (Kepas Sanda) was killed, (2) that fight started when the original miner (Placer Dome) started a survey before commencing operations, (3) he was initially paid K24,000 on account of land ownership, (4) his clan of Okoyepe was displaced by members of the Kieowa clan, (5) his complaints had “fallen on deaf ears”, (6) hostility between those two clans has continued, and (7) when Barrick’s successor, namely New Porgera Limited (NPL) attempted to sign a new agreement with the appellants, his claim was advised to seek legal redress.
5 On 6 February 2024 the District Court made an interim order, restraining Barrick from making payments to the appellants, adjourning the proceedings for a contested hearing on 14 March 2024, and requiring the relevant documents to be served by 5 March 2024.
6 On 18 March 2024 Sanda filed another Notice of Motion which sought to add NPL as a defendant in the proceedings and to have the interim order extended to also apply to NPL. Also filed on that date were Sanda’s affidavit in support and an affidavit of service. Not surprisingly, on 19 March 2024 those orders were made so that NPL became a party to the proceedings and became bound by the same interim order that applied to Barrick. The orders made on that day indicated that the “substantive matter returns on 23rd April, 2024”.
8 On that occasion, the orders made on 6 February 2024 and 19 March 2024 were continued until the establishment of a Local Land Court in Enga Province, and it was directed that the proceedings would return to the District Court, after there had been a determination by the Local Land Court, so that those orders could be discharged.
9 A notice of motion was filed by the appellants on 19 June 2024, seeking the dismissal of the proceedings, which motion referred to provisions in the LDSA. That motion also sought to have the interim orders set aside.
10 The affidavit filed in support of that motion was that of one of the appellants, Philip Mungalo. In that affidavit, he disputed Sanda’s claim as to land ownership, contending that the subject land belonged to the appellants. After referring to (1) a Village Court order dated 4 November 2015, (2) District Court proceedings that were finalised on 23 February 2016 (although the annexure included in the Appeal Book was illegible), (3) a Village Court summons that was never determined, and (4) District Court proceedings finalised on 25 August 2017, it was suggested that those matters “are the grounds supporting my application to dismiss the proceedings for being res judicata”. It is convenient to here note that the District Court orders made on 25 August 2017 were in a similar form to the orders now under consideration and there was nothing to suggest those orders were challenged by the appellants. This affidavit went on to suggest that the proceedings should have been commenced in a Local Land Court, not the District Court. Reference was also made to a compensation agreement dated 20 December 1990 and to two compensation agreements which the deponent refused to sign.
11 On 15 August 2024:
(1) the appellants’ 19 June 2024 motion was dismissed,
(2) the interim orders made on 6 February 2024 and 19 March 2024, which were continued on 23 April 2024, were confirmed,
(3) the proceedings were stood over, pending determination of customary land ownership “by the Local Land Court when such is established in Enga Province”, and
(4) no order was made in relation to costs.
12 The reasons provided by the learned magistrate for making those orders indicated that the issue of land ownership was never determined in earlier proceedings, despite efforts that included an Operation Mekin Save (OMS) Village Court summons. That Magistrate noted the following matters. First, that while the District Court did not have jurisdiction to make determination in relation to customary land, it did have jurisdiction to direct that a matter brought before it be taken before a Local Land Court, which was said to be the reason why the interim orders were made. Secondly, that there are no land mediators in Enga Province which explained what had been done. Thirdly, that the claim that the matter has been dealt with by other courts was not valid as the issue between the parties over the Homeaka land remains unresolved. As a result, the appellants’ motion was dismissed and the process taken by Sanda was held to have been justified.
13 On 29 August 2024 Sanda took the matter further by filing a Notice of Motion that sought an order that the order made by the Porgera Paiela Village Court (OMS) dated 8 March 2024 is binding and that he and his family were entitled to receive amounts payable in respect of the Homeaka land.
14 Sanda’s affidavit in support suggested that “The Porgera Village Court sitting in its civil jurisdiction as the Operation Mekim Save (OMS), heard the matter and found that the subject customary land is owned by the Sanda family of the Okoyape sub-clan of the Maipangi clan of Porgera, Enga Province.” A copy of the order referred to was annexed. It was suggested the District Court should apply that Village Court order pending determination by a Local Land Court.
15 A 9th December 2024 affidavit of service indicated that Sanda’s lawyer had a telephone conversation with Philip Mungalo, the first appellant, during which he advised him that the proceedings had been listed on 6 December 2024. It was said that the motion and affidavit in support were served to Philip Mungalo’s whatsapp number and a supporting document was provided. This affidavit included evidence that Mungalo said he would “send his representative to court”.
16 On 20 March 2025 the orders sought in Sanda’s 29 August 2024 motion were made. The orders made on that occasion included setting aside orders previously made in the proceedings. Five pages of reasons for those orders were provided. In those reasons, it was noted that the 8 March 2024 order of the Porgera Paiella Operation Mekim Save (OMS) Village Court (the OMS decision) was in favour of Sanda and the legal reasoning for the decision to make the orders was set out.
17 On 15 May 2025, that the appellants’ current lawyer became involved in the proceedings, by filing a Notice of Appearance. On that day, a Notice of Motion was filed by the appellants, seeking to set aside the orders made on 20 March 2025, and to have the matter sent back to the “Joint (OMS) Sitting in Porgera”. Affidavits in support were provided by Angalo Pundipundi, and Philip Mungalo.
18 Mr Pundipundi said: “I was not served with any Court documents by any one nor the Complainant in this matter of any other related matters”. He referred to Philip Mungalo as “our lead Clan agent”. He also claimed: “I do not know anything about this joint OMS sitting held in Porgera on 08th Match 2024”. In the closing words of this affidavit, Pundipundi said “I have laid a formal complaint with the Police so those involved in facilitating and issuing the fake Court order (Court Order No. 09952), with my name on it, will face the consequences of their involvement”.
18 Mr Mungalo suggested he was not just one of the clan agents but was: “the leader of all other clan agents from the Laku clan”. After referring to his motion that was filed on 19 June 2024 and dismissed on 15 August 2024, he suggested he became sick. While he provided medical evidence, that only suggested he was in hospital from 28 October 2024 to 1 November 2024. The next date he referred to was 27 April 2025 when he said he was informed about the orders made on 02 March 2025. It is convenient to here note that he did not refer to any telephone conversation with Sanda early in December 2024 or to being served with documents via whatsapp. This affidavit went on to complain about the OMS decision but did not indicate any appeal or other attempt to challenge that decision. Mr Mungalo claimed he was not served with the motion filed on 29 August 2024.
19 A ten-page written submission, dated 26 June 2025, was provided by the appellant’s lawyer in support of the application of the appellants to set aside the orders made on 20 March 2025.
20 Those submissions noted that the issues requiring consideration were (1) whether the application was made promptly, (2) whether there is a reasonable explanation for allowing the orders to be made ex parte, and (3) whether there is an arguable defence on the merits. After referring to reported decisions, submissions were made on those three issues.
21 First, it was contended that the appellants were not “properly informed or served” and that the appellants “were not aware of that application”. Secondly, it was contended that the appellants did not become aware of the orders they sought to have set aside until 27 April 2025 and that they promptly applied to have them set aside on 15 May 2025. Thirdly, complaints were made in relation to the OMS decision, including a claim that “the OMS Order No. 09952 is forged and fake order”, and it was contended that the appellants had a defence on the merits.
22 On 16 July 2025 the appellants’ motion to set aside the orders made on 20 March 2025 was dismissed and those orders were confirmed, with no order being made in respect of costs. Eight pages of reasons for those orders were provided. Those reasons noted what appeared in Mr Pora’s 9 December 2024 affidavit of service which included the following paragraph:
On or about 02nd December I had a telephone conversation with one of the Defendants, Philip Mungalo through his phone number 74638248 and I advised him that the matter was fixed for hearing on 06th December 2024 at 9:00am. He said he was in Port Moresby and send to send his representative to Court.
23 After accepting that the appellants sought to set aside the orders within a reasonable time of becoming aware of those orders, it was noted that there was affidavit evidence that Philip Mungalo was aware of the hearing and would have someone attend court to respond to the motion. A finding was made that the appellants had failed to provide any reasonable explanation for their failure to respondent to the motion between 11 December 2024 and when the orders were made on 20 March 2025. It was also noted that the appellants were contending that they had a defence to the OMS decision rather than the decision of the District Court. It was concluded that the propositions made in support of the appellants’ 15 May 2025 Notice of Motion were misguided and insufficient. As a result, the motion was dismissed and the order made on 20 May 2025 were confirmed.
Relevant law
24 In the District Courts Act 1963, s 230 requires this Court to inquire into the decision of the District Court and to allow the appeal if there has been a substantial miscarriage of justice. That statutory provision does not entitle an appellant to a re-hearing in the National Court and does not refer to a question of fact, a question of law or a mixed question of fact and law.
25 The law in relation to setting aside a decision was not in dispute: it was accepted that the relevant issues are the three issues listed above, namely:
(1) whether the application to set aside the orders was made promptly, and
(2) whether there is a reasonable explanation for the failure to attend, and
(3) whether there is an arguable defence on the merits.
Submissions for the appellants
26 The grounds of appeal in the Notice of Appeal, filed on 15 August 2025, ran to a total of 49 paragraphs and sub-paragraphs, over five pages. An Amended Notice of Appeal, filed on 26 September 2025, included 51 paragraphs and sub-paragraphs. As was correctly observed in the written submissions of the second and third respondents: “The Appellants raise various grounds of appeal which are prolix and repetitious”. In response to directions made on 31 October 2025, the appellants lodged 18 pages of written submissions which were said to “consolidate the grounds”. However, despite suggesting there were “four main grounds of appeal”, 17 grounds of appeal were listed.
27 The submissions for the appellants were grouped under four headings:
“The Learned Magistrate failed to consider the Applicant’s/Appellants evidences”
28 It was contended that the “Court documents” were not properly served. Further, that the Magistrate was wrong to consider the affidavit evidence of the first respondent and should have considered the evidence of the appellants on the issue of explaining non-attendance. It was suggested “the Defendants/Appellants were not served with the Documents and did not know the date of the hearing”. It was also submitted that the Magistrate failed to consider the appellant’s evidence that they had a defence on the merits, and reference was made to the appellant’s claims as to ownership. Those contended errors were said to constitute a substantial miscarriage of justice.
“OMS Order No. 09552 dated 08th March 2024”
29 Submissions were made to the effect that the Magistrate should not have relied on the OMS order dated 8 March 2024. Reference was made to the decision in Kupa v Joseph [2023] N10813 which was said to provide support for the exercise of this Court’s power, conferred by s 230 of the District Courts Act 1963, to make orders when satisfied that there has been a miscarriage of justice.
“District Court’s jurisdiction”
30 It was contended that the District Court did not have jurisdiction to determine an issue of customary land ownership and thus did not have jurisdiction to make the decision under consideration. Reliance was placed on the decision on Agalu v Eno [2005] N2904.
“Apprehension of Bias by the Court in favour of the Complaint/First Respondent”
31 A suggestion was made there was impropriety on the part of the first respondent, which the Magistrate overlooked, and “leaned” unreasonably in favour of the first respondent. That was said to constitute bias. Reference was made to the decisions in Boating v The State [1990} PNGLR 342, PNG Pipes & Anor v Majo Sefa (1998) SC 592, and Yama v Bank of South Pacific (2008) SC 921.
32 The Notice of Appeal did not set out the orders sought. In the Amended Notice of Appeal, the orders sought were as follows:
33 The orders sought by the appellants in their submissions, are set out below:
d) The Respondent shall pay the Cost of this proceeding.
Submissions for the second and third respondents (Barrick and NPL)
33 After referring to s 43 and s 48 of the Village Courts Act, it was contended that the Village Court acted beyond its jurisdiction because, although it could determine “use or occupation” of the subject land, it could not determine “a matter involving ownership of the land”. Support for that submission was said to be found in Joseph Bonga v Jacklyn Mamat (2018) N7284.
34 Based on six reported decisions, it was submitted that “disputes over customary land ownership, or interest in customary land and boundaries are matters within the exclusive jurisdiction of the Land Titles Commission and the Land Court.” Reference was made to s 15(1) of the Land Titles Commission Act 1962 and s 26 of the Land Disputes Settlement Act.
35 In succinct submissions, it was contended that the OMS decision was made without jurisdiction and that, likewise, the District Court did not have jurisdiction to make any determination as to customary ownership. It was noted that it is the responsibility of the Government, perhaps with the assistance of the Magisterial Services, to ensure that a Land Court is established and sits at Porgera.
36 It was noted that:
The Land Settlement Act [establishes] a Provincial Land Disputes Committee for each province (s 50) whose functions are to declare Land Mediation Areas, Land Mediation Divisions, appoint Land Mediators and approve the appointment of Local Land Magistrates (s 7) and further the Minister may by notice in the National Gazette (s 21) establish a Land Court for a province and (s 22) appoint a Magistrate of a Land Court.
37 The outcome suggested by the second and third respondents was the that the appeal be allowed, the decision under appeal be set aside, and the dispute about the ownership of the customary land known as “Homeaka” be referred to the Land Court at Porgera for an expedited hearing.
38 Finally, after noting that the second and third respondents were forced into this litigation by the appellants and the first respondent, it was suggested that no orders as to costs should be made against either the second or third respondents.
Consideration
34 It is not disputed that the learned Magistrate identified the three correct issues: (1) whether the set aside application was made promptly, (2) whether there was a reasonable explanation for the failure to attend, and (3) whether the appellants had a arguable defence on the merits. It is convenient to refer to those as the first, second and third issues.
38 In relation to the first issue, namely whether the application to set aside was made promptly, there was no dispute. Consequently, that issues do not require further consideration.
39 Dealing with the second issue of whether there was a reasonable explanation for the failure to attend the hearing on 20 March 2025, it is noted that, at the hearing of the set aside motion on 16 July 2025, Mr Pora was not cross-examined. Further, it must be noted that the affidavit of Mr Mungalo was sworn on 7 May 2025, well after the affidavit of service sworn by Henry Pora on 9 December 2025. In his affidavit, Mr Mungalo did not respond to Mr Pora’s affidavit.
40 As a result, the unchallenged and uncontradicted evidence before the Magistrate was that Mr Mungalo (1) was aware of the hearing, (2) said he would arrange for someone to attend for the appellants, and (3) was provided with a copy of the relevant documents. The fact that other appellants, such as Mr Pundipundi, may claim they were not served is of no moment when Mr Mungalo himself asserted that he was the lead agent for the appellants. The claim of Mr Mungalo that he was unaware of the hearing that resulted in the orders which the appellants unsuccessfully sought to set aside must be rejected.
41 Further, the medical evidence upon which the appellants relied was insufficient. Accordingly, the appellants failed to explain their failure to attend the hearing that resulted in the orders made on 20 March 2025. The appellants did not establish any error in the part of the Magistrate in relation to that issue.
42 Turning to the third issue, it could have been that the District Court was only asked to make an order that was consequential upon the OMS decision, in which case it could not be said to have made a decision in relation to the issue of who are the customary owners of the land the subject of these proceedings. However, the orders sought by the respondent included a request for an order that the OMS order made on 8 March 2024 is binding.
43 As there is a presumption of regularity, which renders a decision binding unless and until it is set aside, and since issue estoppel operates to render a decision binding unless set aside on appeal, it is understandable that the Magistrate would confirm the OMS decision. Since the decision being challenged was a refusal to set aside orders made by the District Court on 20 March 2025, it is understandable that the Magistrate would consider submissions referring to the OMS decision misguided.
44 The decision which was made on 20 March 2025 may be summarised by saying that the District Court approved payments being made to the people who had been determined by an OMS decision to be the landowners.
44 However, it is not necessary to decide the third issue because the Court is satisfied that a substantial miscarriage of justice has “infected” these proceedings and that the preferable course is to make orders that will stop either further time being taken or further costs incurred until the ownership issue can be properly considered. The basis for that finding is what was clearly, concisely and correctly set out in the submissions of the second and third respondents. Simply stated, that basis is found in s 43 and 48 of the Village Courts Act.
45 In that statute, s 43 is headed “Disputes in respect of land”. It provides:
A Village Court that has jurisdiction over an area in which there is situated any land that is the subject of a dispute as to–
(a) its ownership by custom; or
(b) the right by custom to its use,
may, on the application of a party to the dispute, make an order–
(c) authorizing the use or occupation of the land by one of the parties to the dispute for such purposes and subject to such conditions as are set out in the order; and
(d) where appropriate, prohibiting the use or occupation of the land referred to in Paragraph (c) except in accordance with an order referred to in that paragraph; and
(e) restraining the other party to the dispute from interfering with the authorized use or occupation,
or for any other purpose, pending a decision by the Local Land Court or the Provincial Land Court.
46 It is necessary to consider that provision in conjunction with s 48, headed “Limits of civil jurisdiction”, which is in the following terms:
(1) A Village Court has no jurisdiction under this Division in relation to–
(a) subject to Section 43, a matter involving the ownership of land; or
(b) a dispute involving the driving of a motor vehicle.
(2) Nothing contained in Subsection (1)(b) shall be construed as preventing a Village Court from dealing with a motor vehicle offence where such an offence is a prescribed offence under Section 41(a).
47 As was submitted succinctly for the second and third respondents, the OMS decision, being a Village Court decision, could decide “use or occupation”, but not “ownership”.
48 However, before going to the question of what orders should be made, there are two matters which should be recorded.
49 First, having considered all the documents and submissions provided in relation to this appeal, this Court rejects the suggestion there was bias on the part of the learned Magistrate. That claim rose no higher than an unsubstantiated allegation.
50 Secondly, it is noted that the first respondent did not lodge any submissions and did not participate in this appeal.
51 Orders having previously been made that payments in relation to the land known as Homeaka should not be paid until the issue of ownership of that customary land is determined by a Local Land Court, it is considered preferable to restore that position, noting that will give both parties an incentive to have that issue determined as soon as possible.
Costs
51 As the first respondent did not participate in these proceedings, his involvement was equivalent to that of a submitting appearance: leaving it for the Court to decide the issues raised by this appeal.
52 The appellants could and should have either attended the hearing at which the challenged orders were made or been represented at that hearing. Had they done so, and had succinct submissions been made, the time and costs of this appeal would have been avoided. In particular, the clearly significant costs of the turgid Notice of Appeal and submissions would have been avoided. The Court does not consider it reasonable, in such circumstances, to inflict the burden of those costs on the first respondent.
53 In the submissions for the second and third respondents, it was contended that no order for costs should be made against them. However, no submissions were made to seek an order for costs.
54 It is also noted that, in the recent stages of the litigation between these parties, namely on 15 August 2024, 20 March 2025 and 16 July 2025, there was no order as to costs. The Court considers that should also be the order in this appeal.
Observations
55 Given the lack of a Local Land Court for Enga Province in general, or for Porgera in particular, an order should be made for a copy of these reasons to be provided to the Attorney-General.
56 There is a real and urgent need for a Local Land Court to be operating in Porgera so that land disputes are decided peacefully, by the rule and law, and not with hostilities or even violence.
Orders
57 For the reasons set out above, the following orders are made:
LMP 127;
(3) Road Link & Wali Creek Water pipeline – ME108, and
(4) Power poles & transmitter -ME 108.
Orders Accordingly.
________________________________________________________________
Lawyers for the appellants: Niuage Lawyers
Lawyers for the second and third respondents: Ashurst PNG
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