Makula v Kiwiwi [2025] PGNC 523; N11671 (17 October 2025)

N11671

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS(JR) NO. 195 OF 2021

AGATHA MUEKO MAKULA for herself and members of the Huhula Clan
Plaintiff

V

YOKI KIWIWI & ORS
Defendants

ALOTAU: KARIKO J
13, 15, 17 OCTOBER 2025

JUDICIAL REVIEW – application for leave – considerations – exercise of discretion

The applicant applies for leave for judicial review against the decision of the of the Registrar of Incorporated Land Groups to issue a Certificate of Recognition in favour of a land group over customary land while there was a registered dispute in respect of the land.

Held

1. The requirements for the grant of leave to apply for judicial review were met:
   
   • (a) the applicant had locus standi or a sufficient interest in the decision sought to be reviewed;
   • (b) there was a reasonable explanation for the delay in applying for leave;
   • (c) the applicant had exhausted all available statutory and administrative avenues to him to seek redress; and
   • (d) the applicant had an arguable case.

.

2. Leave to apply for judicial review granted.
   

Cases cited

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Ombudsman Commission v Yama (2004) SC747

Counsel

K Baloiloi, for the plaintiffs
P Tamutai, for the first and second defendants

1. KARIKO, J: The plaintiff applies ón behalf of her Huhula Clan for leave to seek judicial review of the decision of the Registrar of Incorporated Land Groups of 2 December 2019 to issue a Certificate of Recognition for the Gomila Siona Land Group.
   

BACKGROUND

2. The brief background facts giving leading to these proceedings are these.
   
3. In response to a newspaper notice published on 10 October 2018 by the Registrar of of an application by Gomila Siona Baiga Land Group for recognition as an incorporated land group, the plaintiff lodged an objection with the Registrar on grounds that the application referred to land that included areas owned by Huhula and other clans.
   
4. Following the objection, the Registrar by letter of 4 December 2018 requested the relevant parties to resolve the dispute by mediation.
   
5. Attempts at mediation were not successful for varying reasons and while the dispute remained unresolved, the Registrar issued the Certificate of Recognition for the Gomila Siona Land Group on 2 December 2019.
   
6. The plaintiff alleges the Registrar acted in breach of the law, in particular s 5A and s 5 B of the Land Groups Incorporation Act.
   
7. She appealed the decision to the Minister for Lands & Physical Planning on 21 May 2020 but has received no response to date.
   
8. On 17 June 2021 she filed for leave to apply for judicial review of the Registrar’s decision.
   

APPLICATION FOR LEAVE

9. It is settled law that there are four requirements for the grant of leave for judicial review. The plaintiff must demonstrate:
   
   • (1) locus standi or a sufficient interest in the decision the subject of the application;
   • (2) that there has been no undue delay in making his application for leave;
   • (3) that he has exhausted all available statutory and administrative remedies available to him for redress; and
   • (4) that he has an arguable case justifying the grant of leave for judicial review.
     

CONSIDERATION

10. I am satisfied the plaintiff has standing. She represents a clan which claims to own some of the land claimed by Gomila Siona Land Group.
    
11. While there has been a rather lengthy delay in making the application for leave, I accept the explanation for that as reasonable. The plaintiff waited for the Minister to respond to her appeal before she filed the application. The application was not moved earlier because the National Court (civil jurisdiction) has not regularly sat in Alotau for several years and in any case, the case has gone through the mediation process in the National Court, albeit unsuccessfully, and was relisted for hearing by the mediation Judge just recently.
    
12. The plaintiff has exhausted the administrative or statutory remedies available to her, being the appeal process to the Minister.
    
13. The plaintiff has also demonstrated an arguable case.
    
14. It is settled law that the circumstances under which judicial review may be available include where the decision-making authority commits an error of law: Kekedo v Burns Philp (PNG) Ltd [1988-89] 122; Ombudsman Commission v Yama (2004) SC747.
    
15. The grounds pleaded by the plaintiff contain a reference to proper grounds of review recognised by law and a description of the relevant statutory provision duty alleged to have been breached.
    
16. As stated earlier, the plaintiff alleges the Registrar acted in breach of the law, in particular s 5A and 5 B of the Land Groups Incorporation Act. These provisions read (with emphasis added):
    

5A. DETERMINATION OF DISPUTE BY REGISTRAR.

If it appears to the Registrar that there are internal disputes relating to the identity of the group's representatives, officers or membership, the Registrar shall determine whether to -

(a) reject the application; or

(b) withhold the processing of the application until the Registrar is satisfied, based on subsequent evidence, that the internal dispute has been settled and then proceed to incorporate the applicants.".

5B. REGISTRAR TO CAUSE NOTICE OF APPLICATIONS.

(1) In addition to the powers given under Section 33, the Registrar shall –

(a) cause notice of all applications for recognition made under Section 5 to be published in the National Gazette; and

(b) forward copies to –

(i) the district administrator in whose area the land-group or any of the property claimed on behalf of the land group is situated; and

(ii) the village court within whose jurisdiction members of the group reside and

the district administrator or the village court in receipt of such notice shall further disseminate notice of the application and particulars in such manner they think most likely to ensure that it is widely known to persons having knowledge of or an interest in the affairs of the land group or its members.

"(2) The Registrar shall not issue a certificate of recognition unless he receives from the district administrator or a village court a confirmation notice of receipt of the documentation referred to in Subsection (1) and that they have complied with Subsection (1)(b).
(Emphasis added)

17. The argument is that the Registrar issued the certificate while the dispute between clans remained unresolved; and the notice of application for recognition was not properly distributed. It is not my duty to consider the merits of this claim at this stage. I only must be satisfied that the plaintiff has an arguable case, and I am so satisfied.
    
18. In the exercise of the Court’s discretion, I grant leave to the plaintiff as sought in her Originating Summons filed 17 June 2021.
    

ORDERS

19. I make the following orders:

1. Pursuant to O16 r3(1) and (2) of the National Court Rules the plaintiff’s application for leave to apply for judicial review is granted.
   
2. The plaintiff shall file a notice of motion under O16 r5(1) of the National Court Rules within 14 days of this date.
   
3. Within 21 days of this date the plaintiff shall serve on the defendants its notice of motion for substantive judicial review together with its originating summons for leave and all supporting documents together with this order.
   
4. The matter be listed for directions hearing on 3 December 2025 at 9.30am.
   
5. Time is abridged.
   

________________________________________________________________
Lawyers for the applicant: Baloiloi Lawyers
Lawyers for the defendants: Tamutai Lawyers