Kilanus v Garap [2025] PGNC 294; N11437 (15 August 2025)

N11437

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS(JR) NO. 164 OF 2024

IN THE MATTER OF AN APPLICATION SEEKING
LEAVE TO APPLY FOR JUDICIAL REVIEW
PURSUANT TO ORDER 16 RULE 3(1)(2) OF THE
NATIONAL COURT RULES

BETWEEN:
KWAKU IMBUN KILANUS for himself and 11 other Heads of Plaintiffs for and on behalf of Kumwats Clan, C/Yangina ILG PO Box 1075, Lae 411, Morobe Province, whose names are set out on Schedule 1 of the OS
Applicant

AND:
JOSEPH GWAKU GARAP in his capacity as the Chairman of Sangak Land Group Incorporated (ILG)
First Respondent

AND:
BOARAS GIUKA in his capacity as the
Ward Councilor of Ward 27 of Sangak ILG
Second Respondent

AND:
SANGAK LAND GROUP INCORPORATED (ILG)
Third Respondent

AND:
EMILY VINARANG in her capacity as the Senior ILG Officer
attached to the Incorporated Land Group Office of the
Lands & Physical Planning Department
Fourth Respondent

AND:
AUGUSTINE KAPANOMBO in his capacity as the Director/Registrar of the Incorporated Land Group Office of the Lands & Physical Planning Department
Fifth Respondent

AND:
THE DEPARTMENT OF LAND & PHYSICAL PLANNING
Sixth Defendant

AND:
THE MINISTER FOR LANDS AND PHYSICAL PLANNING
Seventh Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Eighth Defendant

LAE: DINGAKE J
13, 15 AUGUST 2025

JUDICIAL REVIEW – failure to specify the decision maker sought to be reviewed and to exhaust administrative remedies – held Plaintiff failed to specify decision sought to be reviewed and to appeal in terms of Section 26 of the Land Incorporation Act 1974 – proceedings dismissed.

Counsel
Mr. Colman Boku, for the plaintiff/applicant
Mr. Kenneth Aisi, for the 1^st, 2^nd & 3^rd respondents
Ms. Nancy Kibikibi, for the 4^th, 5^th, 6^th, 7^th & 8^th respondents

1. DINGAKE: INTRODUCTION: This matter concerns a judicial review application challenging the decision of the Fifth Respondent to issue ILG Certificate No. 1720, Gazette No. G28, dated 18th January 2024 to the Third Respondent.
   
2. ⁠On or about the 6^th of September 2024 the Plaintiff approached this Court by way of Originating Summons pursuant to Order 16 Rule 3(3) of the National Court Rules seeking to be granted Leave to apply for judicial review of the decision of the Fifth Respondent made for and on behalf of the Sixth, Seventh, and Eighth Respondents in certifying and issuing Sangak Land Group ILG No. 1720, Gazette No. G28 dated 18 January 2024.
   
3. ⁠By way of Order 16, Rule 5(1) of the National Court Rules substantive Notice of Motion the Plaintiff sought the following relief from this Court:
   
   1. An Order in the nature of certiorari under Order 16 Rule 1 (1) of the National Court Rules be issued, commanding the Fifth Respondent to provide to Court the records of his decision-making progress in certifying and granting Sangkat Land Group ILG N0.1720, Gazette No. G28 Dated 18^th January 2024 and be quashed;
      
   2. An order in the nature of prohibition under Order 16 Rule 1 (1) of the National Court Rules be issued to the Respondents from dealing with, the SANGAK ILG No. 1720, Gazette No. G28 D 18^th January 2024 until the final determination a settlement;
      
   3. An order that the matter be remitted to Land Mediators of Wampar LLG and Mumeng LLG for mediation and settlement of the Dispute as per Section 15 of the Land Dispute Settlement Act, 1975.
      
   4. Cost of this proceeding to be met by the Respondents.
      
   5. Any other order deemed appropriate.
      
   6. Time of entry be abridged to the date of settlement forthwith."
      
4. ⁠Two key issues arise for determination:
   
   • (a) Whether the Notice of Motion is incompetent for failing to specify the decision sought to be reviewed, and
     
   • (b) Whether the judicial review ought to be dismissed for failure to exhaust administrative remedies under Section 26 of the Land Group Incorporation Act 1974.

ISSUE 1: WHETHER THE NOTICE OF MOTION IS INCOMPETENT

Originating Summons

5. As it is clear from the above the Plaintiff in the Originating summons prayed to be granted leave to apply for judicial review of the decision of the Fifth Respondent dated 18 January 2024, which was granted. However, in the substantive Notice of Motion the Plaintiff seeks that the Court must command the Fifth Respondent to provide to Court the process of the decision making. The First Respondent says this renders the Notice of Motion defective.
   

Analysis of the Notice of Motion

6. The substantive Notice of Motion does not explicitly state the decision under review (i.e., the issuance of ILG Certificate No. 1720, Gazette No. G28 dated 18th January 2024).
   
7. ⁠Instead, it seeks an order commanding the Fifth Respondent to produce the decision-making record.
   
8. While the supporting affidavit references the ILG Certificate, the Notice of Motion itself must specify the decision sought to be reviewed. The failure to specify the impugned decision is a fatal defect.
   

Conclusion on Competency

9. The Notice of Motion is incompetent for not specifying the decision sought to be reviewed and with respect to which leave was granted.
   

ISSUE 2: WHETHER THE PLAINTIFF FAILED TO EXHAUST ADMINISTRATIVE REMEDIES

10. Judicial review is a remedy of last resort. Where an alternative remedy (e.g., an appeal) exists, it must be exhausted unless exceptional circumstances justify bypassing it.
    
11. Section 26 of the Land Group Incorporation Act 1974 provides:
    

“26. APPEALS TO MINISTER.

(1) A person aggrieved by a decision of the Registrar under this Act (other than a decision under Section Sch. 1.9(1)) may appeal to the Minister.

(2) On an appeal under Subsection (1), the Minister has and may exercise all the powers and functions of the Registrar under this Act, and shall–

(a) uphold the appeal; or

(b) reject the appeal; or

(c) refer the matter back to the Registrar for reconsideration, with such comments or directions as the Minister thinks appropriate,

and for that purpose may–

(d) call for further information or for further comments from–

(i) the group concerned or any of its members; or

(ii) the dispute-settlement authority; or

(iii) a Local-level Government or Village Court to which a notice should be given under Section 33(1); or

(iv) any person referred to in Section 33(2); or

(e) direct the Registrar to make a further report on the matter, or both.

(3) The decision of the Minister is final, except that if the matter is referred back to the Registrar under Subsection (2)(c ) the provisions of this section apply to the decision of the Registrar on the reconsideration.

Plaintiff’s Failure to Appeal

12. It is common cause that the Plaintiff did not appeal to the Minister under Section 26 of the Land Group Incorporation Act 1974. No satisfactory explanation has been provided for this failure.
    
13. Judicial review is not a substitute for an appeal. The Court may decline jurisdiction where administrative remedies are ignored.
    

Conclusion on Exhaustion of Remedies

14. The Plaintiff’s failure to appeal to the Minister is a fatal omission warranting dismissal of the judicial review.
    

FINAL RULING

15. For the foregoing reasons:
    
    • (a) The Notice of Motion is incompetent and is dismissed for failing to specify the decision sought to be reviewed.
      
    • (b) Alternatively, the judicial review is dismissed for failure to exhaust administrative remedies under Section 26 of the Land Group Incorporation Act 1974.
      
16. Costs shall follow the event and are awarded to the Respondents.
    
17. The Court orders that:
    
    • (a) The entire proceedings are accordingly dismissed.
      

(b) The Plaintiff shall pay the Respondents costs as may be agreed or taxed.
________________________________________________________________
Lawyers for the appellant/applicant: Simon Sengi & Associate Lawyers
Lawyers for the 1^st, 2^nd & 3^rd respondents: Aisi Lawyers
Lawyers for the 4^th, 5^th, 6^th, 7^th & 8^th respondents: Solicitor General