N6457
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 420 OF 2015

BETWEEN:

NICK AIYEN of the LAMATLIK CLAN
-Plaintiff-

AND:
PHILEMON TOIZIK, TONY SALZIK, ABEL IBAZIK, ERIC AUPOK & BANABAS LOWAN, all of KATRONMOLAM CLAN
-Defendant-

AND:
PHILEMON TOIZIK, TONY SALZIK, ABEL IBAZIK, ERIC AUPOK & BANABAS LOWAN, all of KATRONMOLAM CLAN
-Cross-claimants-

AND:
NICK  AIYEN of the LAMATLIK CLAN
-Cross-Defendants-

Kokopo:  Anis, AJ
2016: 22 June and 27 September

Enforcement of a Deed - two customary landowner clans - initial dispute was over customary land - matter determined at the Local Land Court - matter appealed to the Provincial Land Court - appealed dismissed - Judicial Review proceeding filed - Judicial Review proceeding dismissed - matter appealed to the Supreme Court - parties reached agreement and signed a deed of settlement and indemnity - Supreme Court proceeding was discontinued - allegation of breach of terms of the deed - cross-claim filed - allegation that deed was manifestly unfair

Facts

The plaintiff claims that his clan and the defendants have a binding agreement, that is, a deed, which was signed on 27 August 2004.  The plaintiff says the deed is legal and has been in operation since 2004.  The plaintiff claims that in 2015, the plaintiff's clan received information that the defendants have breached the terms of the deed or that they have issued threats to breach the terms of the deed.  The plaintiff filed this proceeding.  The defendants filed a cross-claim.  They deny the claim.  They also dispute the validity of the deed but want the Court to declare the deed as manifestly unfair to them and they want the deed reviewed.

Held

1.	The Court must at all times be bound by what is pleaded and must not go beyond that to try to listen to or consider the parties' submissions or issues that are not specifically pleaded [Case followed:  PNGBC v. Jeff Tole (2002) SC694].

2.	Pursuant to section 11 of the Fairness of Transaction Act 1993, if a party recently becomes aware of a matter that amounts to or constitute an unfairness in a transaction, he or she could still commence proceedings under the Act to challenge the transaction but only if the said transaction is three (3) years old or less.

3.	The cause of action by the plaintiff was to enforce the Deed of Settlement and Indemnity and it was not to consider land boundaries which may touch on customary land boundaries related to Block 39 (Case followed: Talibe Hegele v. Tony Kila (2012) SC1180).

4.	The cause of action by the defendants was ambiguous and lacked proper pleading.

5.	The Court found the Deed of Settlement and Indemnity to be valid and binding.

6.	The Court did not find sufficient evidence on a balance of probability that a term of the Deed of Settlement and Indemnity has been breached by the defendants.

7.	The Court found the defendants' cross-claim time barred pursuant to section 11 of the Fairness of Transaction Act 1993.

8.	The Court noted that the relief for permanent injunctions intended by the plaintiff herein was already granted by the Supreme Court in proceeding SCA 103 of 2004, which is binding upon the parties herein.

9.	The Court found that it was an abuse of process by the defendants to challenge the validity of the Deed by filing this proceeding without first setting aside the Supreme Court's Order 15 September 2004 in proceeding SCA 103 of 2004.

Cases cited:

Jeffery Afozah v. The Commissioner of Police (2008) N3300
PNGBC v. Jeff Tole (2002) SC694
Talibe Hegele v. Tony Kila (2012) SC1180

Counsel:
Mr P Yange, for the Plaintiff
Mr T Waisi, for the Defendants

JUDGEMENT

27th September, 2016

1.	ANIS AJ:	The plaintiff is a clan member of the Lamatlik Clan of Lihir Island in New Ireland Province.  Defendants Philemon Toizik, Tony Salzik, Abel Ibazik, Eric Aupok & Banabas Lowan are members of another clan again of Lihir Island called the Katronmolam Clan.  

FACTS

2.	I refer to the Statement of Agreed and Disputed Facts and Legal Issues filed on 3 December 2015.  I must say that I do not find that document helpful.  I note that the parties have identified 13 issues and sub-issues.  This is far too many, confusing and some of them I note are not relevant for this purpose.  I am not going to go through each one of them.  I will instead be guided by the pleading.

3.	The facts of the case appear straightforward.  The plaintiff filed this proceeding to enforce the terms of a deed.  The deed in question is called Deed of Settlement and Indemnity (Deed).  It was signed on 27 August 2004.

4.	All went well after the Deed was signed until 2015.  The plaintiff clan received information that the defendant clan tried to deal with a land, which the plaintiff allege is part of a central land that is covered under the terms of the Deed.  The central land in question is described as Block 39 within the Special Mining Lease (SML) area where the Lihir Gold mine is situated.  The traditional name for Block 39 is "Winbuo".

5.	The plaintiff clan is seeking to enforce the terms of the Deed against the defendant clan.  It also seeks compensation for the allege breach.  The defendant clan filed a defence and cross-claim.  In its defence, the defendant clan disputes the validity of the Deed.  However, in its cross-claim, the defendant clan recognises the Deed as valid because it alleges that the Deed is manifestly unfair to the defendant clan, and it wants the parties to go back to the drawing board to re-set its terms.  

6.	The plaintiff clan in its defence to the cross-claim denies the claim and raises a time bar issue.  It alleges that the defendant clan is out of time to challenge the Deed.

ISSUES

7.	I set out the issues as follows:

(i)	Is the Deed binding upon the parties?
(ii)	Is the defendant clan out of time to challenge the Deed?
(iii)	If the Deed is binding, was there a breach and if so what damages did the plaintiff clan suffer?
(iv)	If the Deed is not binding, what relief is available, and if proven, should be awarded to the defendant clan?

EVIDENCE

8.	I set out the exhibits tendered by the parties into a table format as follows:

Exhibit No.	Description	Date	
“P1”	Affidavit of Nick Aiyen, sworn and filed	22/05/15
	
“P2”	Affidavit of Nick Aiyen sworn and filed	21/03/15
	
“P3”	Affidavit of Nick Aiyen, sworn and filed	24/06/15
	
“D1”	Affidavit of Philemon Toizik, sworn and filed	20/05/15	
“D2”	Affidavit in Support of Peter Kalayen, sworn and filed	20/05/15	
“D3”	Affidavit in Support of  Tony Saltzik,, sworn and filed	20/05/15	
“D4”	Affidavit in Support of Abel Ibazik, sworn and filed	20/05/15	

9.	Nick Aiyen for the plaintiff clan gave oral evidence.  He was cross-examined by the defendants.

10.	The defendants Philemon Toizik, Peter Kalayen and Tony Saltzik gave sworn evidence.  They were also cross-examined by the plaintiff.  

11.	The defendants' Exhibit D4 was tendered by consent.

PLAINTIFF'S REPRESENTATIVE CAPACITY

12.	The defendants questioned the representative capacity of the plaintiff as a preliminary matter.  They said they were not aware whether the plaintiff has complied with term 4 of the Court's Order of 8 May 2015.  The defendants said the plaintiff was required by the said Court Order to obtain the consent of his clan members in the matter.  Well, I ask myself this:  If the defendants do not know whether the orders have been complied with then whose duty is it to find out?  And why are the Defendants raising it before this Court if they did not know whether the plaintiff has complied with the said order?  Do the defendants want this Court to find out the answer for them?  I dismiss this argument.  I rule that the issue should have been but it was not raised earlier by way of a Notice of Motion [See the case:  Jeffery Afozah v. The Commissioner of Police (2008) N3300].

13.	Secondly and regardless of the above ruling, I note that the Plaintiff has actually furnished proof of the consents of his clan members for him to act for them.  I refer to Exhibit P1 herein.

JURISDICTION

14.	During the hearing and presentation of submissions by the parties, there were discussions concerning the boundary of Block 39 and surrounding customary land.  One legal question raised was whether this Court has or will have jurisdiction to address that.  

15.	I find the argument misconceived.  I note that this Court is only concern with issues relating to the validity and enforcement of the Deed.  Block 39 is subject to the Deed, which the plaintiff seeks to enforce before this Court.  The defendant clan, in its pleading, did not raise any challenge to the boundaries of block 39.  I cannot see anything there.  I note that the parties had spent a considerable amount of time during the hearing discussing the boundary of Block 39 to other traditional land.  In my view, submissions on these are baseless and misconceived to the real issue.  This Court will not be distracted and follow the path taken by the parties to address matters that are not properly before it.

16.	In support of my ruling, let me refer to the Supreme Court's case of Talibe Hegele v. Tony Kila (2012) SC1180.  The Supreme Court held and I read:
(1)	If in proceedings in the National Court a question arises whether the Court has jurisdiction due to the subject matter of the proceedings relating to ownership of customary land, the question of jurisdiction is to be determined by characterisation of the cause of action. If the cause of action requires the Court to determine ownership of customary land, the Court will lack jurisdiction. If some other cause of action is being prosecuted, the proceedings will fall within the jurisdiction of the Court.

17.	Identification of the boundaries of Block 39 is not an issue raised in the pleading.  I think the parties have forgotten the fact that there is a consent Supreme Court Order dated 15 September 2004 which is in place that binds them.   The said Court Order specially deals with this Deed and Block 39.  I will discuss that later below in my judgment but for this purpose, let me say that if the defendants want to re-visit the boundaries of Block 39 it has to:

(i)		Set aside the Supreme Court Order of 15 September 2004; and
(ii)	Most importantly, set aside the decisions of the Provincial and Local Land Courts, which have heard and awarded the land where Block 39 rests to the plaintiff clan.

18.	As such and in my opinion, the defendants are raising the question in a wrong forum.  I am satisfied that this Court has jurisdiction to deal with the issues that I have identified above in my judgment, which are properly pleaded and are before this Court for consideration.

DEFENDANTS' PLEADING

19.	Let me firstly clarify the defendants' legal position.  By perusing their pleading, that is, the Defence and Cross-Claim filed on 20 May 2015, the defendants, in my opinion, appear confused as to what it is really that they are after.  At paragraph 4(c) and (d) of their defence, they say they were never aware of the existence of the Deed until recently and they deny signing it.  And they go on to say that if the Deed exists, those persons that signed it did not have their authority.  However, having said that in their defence, in their cross-claim, they recognise the Deed as valid because they do not want the Deed to be declared null and void but instead they want an order for the Deed to be reviewed because they say that its terms are manifestly unfair to them.  Let me demonstrate by firstly reading paragraph 4(c) and (d) of the defendants' defence.  It reads:

4.	The Defendants deny paragraph 6 of the Statement of Claim and say as follows:

c.	The Defendants and the entire Katronmolan Clan were never aware of the existence of a deed of settlement and indemnity and as such deny that they signed any such agreements.
d.	The Defendants and the entire Katronmolam Clan further say that if they deed was purportedly signed and executed by any persons on their behalf, they say that it was done so without the consent and the authorisation of the Defendants and their entire Katronmolam Clan.
...

20.	Then let me read paragraph 1(a) of the defendants' cross-claim which states:

1.	The Defendant/Cross-Claimants repeat paragraphs 1, 4(c) and (d) of the Defence and say that:

a.	The Deed of Settlement and Indemnity signed on 27th August 2004, was manifestly unfair on the Defendants/Cross-Claimants within the meaning of Section 5 of the Fairness of Transactions Act 1993 because of the following reasons:..

21.	The conclusion, by reading the above pleading, is that the defendants say that despite their claim that the Deed may be invalid or void, they want it to be re-negotiated under section 5 of the Fairness of Transactions Act 1993 (FTA).

22.	The defendants continue to maintain that position in their final submission.  I refer to paragraphs 7.1 to 7.4 of their Extract of Submission dated 22 June 2016.  They state and I read:

7.1	In a nutshell the position of Philemon Toizik and the Defendants and their entire clan is that they were never aware (nor were consulted) about the Deed and as such deny signing any such agreements.
7.2	If the Deed was purportedly signed and executed by any persons on their behalf, they say it was done without their consent.
7.3	That the Deed was manifestly unfair within the meaning of Section 1, 4 and 5 of the Fairness of Transactions Act 1993.
7.4	That the Deed be reviewed pursuant to s 5 of the Act.
...

23.	Based on the pleading alone, this Court is not satisfied that the defendants have a prima facie defence or cross-claim.  There appears to be clear fundamental flaw in the defendants' pleading.  On the one hand, they claim that the Deed is invalid.  But at the same time and in their cross-claim, they imply that the Deed is valid or they imply that regardless of its validity, they want it reviewed on the basis that they claim that its terms are manifestly unfair to them.  In my opinion, they defendants cannot have it both ways.  They should have chosen whether to seek a declaration to nullify the Deed, or they should have accepted the Deed and pursue their claim under the FTA.

24.	Let me refer to a good case authority on point concerning pleading.  I refer to the Supreme Court case of PNGBC v. Jeff Tole (2002) SC694.  Justice Kandakasi held and I read:

The law on pleadings in our jurisdiction is well settled.  The principles governing pleadings can easily be summarized in terms of, unless there is foundation in the pleadings of a party, no evidence and damages or relieves of matters not pleaded can be allowed.  This is the effect of the judgements of this Court in Motor Vehicles Insurance (PNG) Trust v. John Etape  [1995] PNGLR 214 at p.221 and Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370 at pp. 373 –374.  These judgements re-affirmed what was always the position at common law and consistently applied in a large number of cases in our country.  The list of such cases is long but reference need only be made to cases like that of Repas Waima v. Motor Vehicles Insurance Trust [1992] PNGLR 254 and Carmelita Mary collins v. Motor Vehicles (PNG) Insurance Trust [1990] PNGLR 580 at p. 582 for examples only.

This position follows on from the objects behind the requirements for pleadings. As the judgement in Motor Vehicles Insurance (PNG) Trust v. James Pupune (supra) at p. 374 said in summary, pleadings and particulars have the object or functions of:

“1.	they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it;
2.	they define the issues for decision in the litigation and, thereby, enable the relevance and admissibility of evidence to be determined at the trial; and
3.	they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. See Dare v. Pulham (1982) 148 CLR 658 at 664.”

25.	The defendants have lawyers acting for them but in my opinion, they have not properly pleaded a valid defence and a cause of action.  It is not the Court's duty to try to figure out exactly what a party wants.  For any Court to proceed to rule on something without the benefit of knowing exactly what a party wants in a matter would simply, in my opinion, be unjust or be contrary to the Court's fundamental or primary role, which is dispensation of justice.  In this case, it is too late to look back except to make a decision based on what is before the Court.  The other fundamental reason for the need to clearly plead a matter is to do with the principle of fairness, that is, to enable the other party to prepare itself and call witnesses so that the issue is properly addressed in Court.

26.	I must say that this is not the only reason I find in relation to the defendants' pleading to refuse their claim.  Let me also consider the other matters in my judgment.

DEFENDANT'S CLAIM - TIME BAR

27.	The plaintiff alleges that the defendants are barred from making claims under section 11 of the FTA.  This defence is pleaded at paragraph 7 of the plaintiff's Defence to Cross-Claim filed on 13 July 2015.  Section 11 states and I read:

11.	Limitation of proceedings.

(1)	Any proceedings under this Act shall, subject to Subsection (2), be commenced soon after the party aggrieved by the transaction to which they relate suffers the disadvantage or becomes aware of the matters which amount to or constitute the unfairness, as the case may be, but no action shall lie later than three years after the date of the transaction.

(Underlining is mine)

28.	In my opinion, section 11(1), particularly the part where I have underlined above, is express.  No action shall lie later than three (3) years after the date of the transaction.  It is not disputed that the Deed was signed on 27 August 2004.  The defendants' cross- claim was filed on 20 May 2015, which is some 11 years after the transaction.  The defendants' submission in relation to its alleged recent knowledge of the Deed's existence is ruled out by section 11 as soon as the three (3) years was up.

29.	The defendants, in my opinion, are therefore barred from bringing an action under the FTA to challenge the Deed.

IS THE DEED VALID?

30.	I now turn my attention to the Deed.   A copy is marked as Annexure "D" to the Plaintiff's affidavit namely Exhibit P2.  I have no doubt that the Deed is valid.  Upon perusing it, I notice that it was duly signed by the parties to it.  Both clans, that is, the plaintiff's clan and the defendants' clan were parties to the Deed.  I note that both clans had lawyers who had represented them at that time who had prepared and who had administered its signing.  Mr Latu of Latu Lawyers acted for the plaintiff's clan.  He signed off as a witness and the plaintiff Nick Aiyen signed the Deed on behalf of the plaintiff's clan.  David Lidgett of Warner Shand Lawyers represented the defendants' clan and he signed off as a witness.  One of the defendants Philemon Toizik signed off on behalf of the defendant clan.  After that, the Deed was presented to the Supreme Court to discontinue the proceeding namely SCA No. 103 of 2004 and other related proceedings that had existed at that time.  I note this from Annexure "E" of Exhibit P2.

31.	I dismiss the defendants' claim that they did not know or that they were not aware of the existence of the Deed until recently.  I also dismiss their claim that those that had signed it did not have their authority.  These allegations, in my opinion, are baseless.  I note that during the hearing, I had asked the defendants' counsel why he did not call or summon their clients' former lawyer Mr Lidgett to appear and give evidence on this point.  I note that counsel gave no reasonable explanation.  

32.	In making my findings herein, I have considered the following:

(i)	If the defendants have issues with their former lawyers not consulting them, that would be a separate matter for them to take up against the said law firm; it is not proper to raise that as a point given that it would constitute mere allegations; they need to file proper proceedings against the proper parties to prove their claim.  One of the parties would of course be the defendant Philemon Toizik.  He should perhaps be sued by his own clansmen if the defendant clan did not give him the authority to commit their clan.

(ii)	I note that the demeanours of the defendants were poor and suggested that they were not truthful witnesses in Court.  The person with the worst demeanour and evidence for the defendants was Philemon Toizik.  He was clearly hesitant and I note that he tried to twist the facts.  I agree with the plaintiff's counsel that this witness cannot be trusted.  He made serious allegations of bribery against the plaintiff in his oral evidence.  He did not put these down into his affidavit beforehand.  In doing so and as quite correctly pointed out by the plaintiff's counsel, it was likely that he had made up the story.  I find that he tried to use his handicap of not being a literate person, to his advantage by arguing that he did not know and did what he did without knowing the truth of the matter.  This person was also found responsible by another National Court (which had dealt with this matter in an earlier related proceeding) to have tampered with the said Court's file.  That is, the National Court in a judicial review proceeding WS 53 of 1997 found that Philemon Toizik together with two (2) others had removed the National Court's file for the matter.  The said National Court's decision is marked as Annexure "A" to Exhibit P3.  This, in my opinion, was a very serious matter.  I am surprised that this person is still free and has not been charged.  And he now appears as a party in this related type proceeding and gives evidence before this National Court.  I would be very cautious to deal with such a person.  He is not a credible witness.

The main inconsistency uncovered was that whilst Philemon Toizik and the other witnesses have denied that they were aware or knew what they were doing concerning the Deed or that their clan did not engage Warner Shand Lawyers to facilitate the signing of the Deed, defendant Tony Salzik told a different story in Court.  When he was asked in examination in chief whether the defendant clan received the K500, 000 which was the consideration given in the Deed, he answered "Yes, the clan received some of the money".  During cross-examination he confirmed that payment was done to Warner Shand Lawyers Rabaul.  I find this evidence consistent with the fact the Warner Shand Lawyers were the lawyers on record for the defendant clan at the material time during the signing of the Deed.  The evidence is also consistent with the fact that based on the terms of the Deed, the money was to be paid into the trust account of Warner Shand Lawyers Rabaul, and defendant Tony here said the money was paid to Warner Shand Lawyers.

(iii)	I have accepted the plaintiff as a credible witness.  He gave his evidence confidently and I did not detect evidence that he was an untruthful witness.  His evidence made logical sense based on the historical account of the matter.  He attached documents that were relevant and useful in terms of assisting the Court to get a better picture particularly of the history of the case.  His oral testimony was short and consistent with what he had deposed to in his various affidavits.

(iv)	I found as a fact that Warner Shand Lawyers Rabaul were lawyers on record for the defendant clan at the material time of the signing of the Deed.  I found that both the plaintiff clan and the defendant clan were duly represented at the material time.

(v)	I have found above in my judgment that the defendants' defence and cross-claim did not disclose a valid defence or claim and that it was ambiguous.

33.	I find that the Deed is binding pursuant to the Supreme Court's Order of 15 September 2004.  If the defendants wish to challenge its validity, the proper process would be to firstly apply or file proceedings in the Supreme Court to undo the Supreme Court Order of 15 September 2004.

IS THERE EVIDENCE OF BREACH?

34.	Now, the plaintiff clan has come to Court because it said it received information from Newcrest Mining Limited of attempts by the defendant clan to discuss or negotiate its interest concerning a parcel of land within Bock 39 of the SML area.

35.	The defendants, in reply to the issue, allege that there is no breach of the terms of the Deed.  They also allege that their actions relate to a different land, which is outside Block 39.  

36.	I ask myself this:  Where is the evidence of breach of the term(s) of the Deed?

37.	The evidence, my opinion, is located at paragraphs 7 to 10 of Exhibit P2.  The plaintiff deposed to and I read:

7.	On a particular date in February 2015, a Superintendent of Community Relations with Newcrest Mining Limited...Mr Luke Kabariu came to Matakues village (Lamatlik clan area) and advised us that certain members of the Katronmolam clan including the Defendants approached the Community Relations Officer of Newcrest and expressed their interest over Block 39.
8.	He also advised us that the Katronmolam clan members were talking to them advising of their plans to also raise a land dispute over Block 39 with us.
9.	On the 5th of March 2015, I along with other members of the Lamatlik clan approached the Community Relations Office of Newcrest and enquired about the claim or the threat of land dispute by Katronmolam clan that was relayed to us by Mr Kabariu.
10.	At that meeting Mr Luke Kabariu and four (4) other Community Relations Officers of Newcrest present revealed to us that a letter of demand was delivered to their office claiming compensation for use of secret sites and others along with claim for a land inside block 39, which was not yet used by Newcrest for its purpose.

38.	Firstly, I think paragraphs 7 and 8 consist of hearsay evidence.  As such, I will not accept them and I rule them out as good evidence.  The plaintiff is obviously telling what someone else had told him of what that person had heard or seen.  This Court cannot accept these as credible evidence.

39.	Paragraphs 9 and 10 are not hearsay evidence because the plaintiff said he attended the meeting at Newcrest Mining Limited's office.  But I note that the company has refused to release the letter of demand which the defendant clan was said to have written to the company.  This letter is not in evidence before this Court.

40.	The plaintiff and his clan filed proceeding soon afterwards merely based on the information and meeting by plaintiff and his other members, as the plaintiff himself has deposed to and as quoted above in my judgment.

41.	I tend to agree with the submissions on point by the defendants.  There seems to be no real evidence before this Court disclosed by the plaintiff to show that the defendant clan or its members have actually breached the terms of the Deed.  And I note from paragraph 10 as quoted above where the mining company states that the block of land within Block 39 which the defendants' letter of demand was based on was not yet used by Newcrest for its purpose.  That to me means there is no activity yet on the said area of land within Block 39.  But I note that there seems to be indication of possible intention by the defendant clan to raise issues concerning Block 39.

42.	But overall, I am not satisfied that there is any real threat based on the evidence.  I am also not satisfied that there is sufficient prima facie evidence put forward by the plaintiff to show that the defendants have breached the terms of the Deed.  The plaintiff's own evidence at paragraph 10 of Exhibit P2 shows that the mining company has not even commenced work on the suggested area within Block 39 of the SML area.  There appears to be evidence to suggest that the defendant clan may challenge Block 39 but that evidence appears hearsay and there is nothing concrete to back that up by the plaintiff with sufficient evidence.

43.	In my opinion, without any other evidence and to make assumptions or presumptions based on what is being presented by the plaintiff is insufficient and would be wrong, and it could even be regarded as reckless application of the Court's power if I were to act on it.  I will not go down that path.

44.	I am not satisfied that the plaintiff has established its claim for breach of a term of the Deed by the Defendants.

45.	There is also a fundamental reason why I am disinclined to grant the other relief sought by the plaintiff and I discuss it now.

THERE IS ALREADY A COURT ORDER IN PLACE

46.	I refer to the Supreme Court's Order dated 15 September 2004.  Both parties do not deny the existence of the said Court Order.  It is marked as Annexure "E" to Exhibit P2.  

47.	Order 10 states and I read:

Each of them the Katronmolam Clansmen and Clanswomen of the one part and the Lamatlik Clansmen and Clanswomen of the other part are permanently restrained from in any manner doing anything howsoever and whatsoever that may interfere with the mining operation at Block 39, of the Second Respondent on behalf of Lihir Gold Limited and the agents and or successors of the Second Respondent and Lihir Gold Limited.

(Bold lettering is mine)

48.	There is already this Supreme Court Order, which permanently restrains the parties in relation to any interference of Block 39.  That being the case I wonder what sort of further permanent restraining orders the plaintiff clan was after when it filed this proceeding.

49.	Secondly, when I look at the terms of the consent Order of the Supreme Court, some of the main terms of the Deed are reflected in the Supreme Court Order of 15 September 2004.  This fact, in my opinion, is important.  I do not think that both parties appreciate the full legal ramifications of the Supreme Court Order of 15 September 2004.

50.	To better explain, let me re-state the Supreme Court order herein.  It reads:

1.	All of the Appellants' appeal proceedings hereunder are hereby withdrawn and discontinued.

2.	The Second Respondent shall from funds it holds in trust, being the net accumulated royalties due to the owner of "Winbou" Block 39 land Lihir Island, ("the Trust Fund") pay to the Appellant the sum of FIVE HUNDRED THOUSAND KINA (K500,000) in full satisfaction of the matters agreed to in paragraph (ii) page 2 of the Deed of Settlement and Indemnity between the Appellant and the First Respondent, dated 27 August 2004 ("the Deed of Settlement and Indemnity") by paying the same by direct credit to the Appellant's lawyers' trust account, as follows:
(a)	Name of Account:	Warner Shand Lawyers Rabaul Trust Account
(b)	Bank:   Bank South Pacific Limited, Kokopo Branch
(c)	Account No:   1000-687906

3.	The Second Respondent shall from the Trust Fund pay to Warner Shand lawyers the sum of FIFTY THOUSAND KINA (K50,000) in full satisfaction of the matters agreed in paragraph (iii) of the Deed of Settement and Indemnity by paying the same by direct credit to Warner Shand Lawyers, as follows:
(a)	Name of Account:	Warner Shand Lawyers Rabaul Office Account
(b)	Bank:   Bank South Pacific Limited, Kokopo Branch
(c)	Account No:   1000-687905

4.	That Nick Aiyen, Thomas Pulman and Clement Sapakie and Clansmen and Clanswomen of the Lamatlik Clan shall forthwith withdraw and discontinue the Contempt of Court Application against Philimon Toizik, Peter Kabas and Clement Dardar filed on 02 July 2004, in the National Court proceedings OS No. 53/1997, as provided in paragraph (iv) of the Deed of Settlement and Indemnity.

5.	That Nick Aiyen, Thomas Pulman and Clement Sapiake and Clansmen and Clanswomen of the Lamatlik Clan shall do away with and forever not pursue the costs which were awarded against Philemon Toizik and the Katronmolam Clan by the Kokopo National Court on 18 June 2004 in the National Court proceeding No. 53/1997, as provided in paragraph (v) of the Deed of Settlement and Indemnity.

6.	That the Katronmolam Clan shall forever indemnify the Lamatlik Clan against any further claims or suits concerning customary ownership of Winbouo land or Block 39, as provided in paragraph (vi) of the Deed of Settlement and Indemnity.

7.	That the Katronmolam Clan shall forever indemnify the Lamatlik Clan against any claims by another Clan(s) and in particular the Tinetalgo Clan who may have other claims or proceedings at the Land Courts and /or the other Courts in relation to Block 39, as provided in paragraph (vii) of the Deed of Settlement and Indemnity.

8.	That the Katronmolam Clan shall forever indemnify the Lamatlik Clan and undertake not to interfere with any benefits at all, of which the Lamatlik Clan is entitled to under Block 39 from the Second Respondent.

9.	That subject to the payments specified in Orders 2 and 3 hereof the Second Respondent shall pay all the remaining monies in the Trust Account together with all other monies which shall in future accrue to the benefit of the owners of Block 39, which come into the hands of or control of the Second Respondent all of which shall be paid as follows:

all such payments are to be divided into 3 equal parts, as near as may be, and such 3 equal parts shall be banked to the following 3 accounts by direct credit respectively as follows (pending any other Order of the Court varying the same):
(i)	As to one equal part to the Bank of South Pacific - Lihir Branch - Account No. 305-1000-624-656 under the account name of Winbuo Block 39;
(ii)	As to another equal part to the Bank of South Pacific - Lihir Branch - Account No. 305-1000-624-657 under the account name of Winbuo Block 39;
(iii)	As to the other equal part to the Bank of South Pacific - Lihir Branch Account No. 305-1000-624-658 under the account name of Winbuo Block.

10.	Each of them the Katronmolam Clansmen and Clanswomen of the one part and the Lamatlik Clansmen and Clanswomen of the other part are permanently restrained from in any manner doing anything howsoever and whatsoever that may interfere with the mining operation at Block 39, of the Second Respondent on behalf of Lihir Gold Limited and the agents and or successors of the Second Respondent and Lihir Gold Limited.

11.	Except as otherwise provided herein, each party shall bear their own costs.

51.	The Deed and the Supreme Court Order are both binding upon the parties.  There is no doubt, as I have ruled above, that the plaintiff clan and the defendant clan in the present proceeding were parties to both the Deed and the Supreme Court's Order.  The plaintiff clan and the defendant clan are therefore bound by the Supreme Court's Order and the Deed.  Any breach of a term of the Deed will attract contempt of Court proceeding.

52.	I now come to the main reasons why I have refused nearly all the relief sought by the plaintiff clan's action and all the relief sought by the defendant clan in its cross-claim.  That is:

(1)	as for the plaintiff clan, apart from relief 1(a) which this Court has found against it and relief 1(b) which the Court has upheld, relief 2 and 3 are already provided for in the Supreme Court Order of 15 September 2004.  It would be duplicity if this Court was to grant these permanent injunctive orders; and

(2)	as for the defendant clan, the only way to challenge the validity of the Deed or the boundaries of Block 39, would be to firstly set aside the Supreme Court Order of 15 September 2004.  After that, the second step would be to appeal or file proceedings to set aside or review the decisions of the Local Land Court and the Provincial Land Court which have awarded the land where Block 39 sits, in favour of the plaintiff clan.  It is an abuse of the Court process, in my opinion, to seek such challenges on the Deed by filing a cross-claim as the defendant clan had done herein.

SUMMARY

53.	In regard to the first issue that is, Is the Deed binding upon the parties? my answer is "yes".  In regard to the second issue that is, Is the defendant clan out of time to challenge the Deed? my answer is "yes and also that it is an abuse of the Court's process to bring a challenge on the Deed in this manner without first setting aside the Supreme Court's Order of 15 September 2004".  In regard to the third issue that is If the Deed is binding, was there a breach and if so what damages did the plaintiff clan suffer? my answer is "the plaintiff has not established on a balance of probability that a term of the Deed had been breached by the defendants.  As such, there can be no award of damages".  And in regard to the final issue that is If the Deed is not binding, what relief is available, and if proven, should be awarded to the defendant clan my answer is "I have ruled that the Deed is binding so the defendants are not entitled to any relief".

COSTS

54.	The award of cost is discretionary.  

55.	I will award costs to the Plaintiff.  I note that I have upheld relief 1(b) as sought by the plaintiff in his statement of claim.

AND THE COURT ORDERS

I make the following orders:

1.	A declaration that the Deed of Settlement & Indemnity signed on 27 August 2004 between Lamatlik Clan and the Katronmolam Clan is binding on all of the members of both clans and the developer Newcrest Mining Limited or any other developer who carries out any work on Block 39 of the Lihir Gold Project.

2.	The balance of the relief sought by the plaintiff, except for cost, is refused.

3.	The defendants/cross-claimants' claim is refused in its entirety.

4.	The defendants/cross-claimants shall pay the plaintiff's costs of the proceedings on a party/party basis which shall be taxed if not agreed upon.

5.	Time is abridged.

The Court Orders accordingly.
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Islands Legal Service :  Lawyer for Plaintiff
Waisi Lawyers	    :  Lawyers for the Defendants