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Justice Foundation for Porgera Ltd v Porgera Development Authority [2017] PGNC 369; N7058 (15 November 2017)

N7058

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.813 OF 2014

BETWEEN:
JUSTICE FOUNDATION FOR PORGERA LTD
Plaintiff

AND:
PORGERA DEVELOPMENT AUTHORITY
Defendant

AND:

OS No.907 of 2014

BETWEEN:
JUSTICE FOUNDATION FOR PORGERA LTD
Plaintiff

AND:
MARK TONY EKEPA
First Defendant

AND:
MICHAEL YANDAPAKE
Second Defendant

AND:
PORGERA LANDOWNERS ASSOCIATION INC.
Third Defendant

Waigani: David, J
2016: 4-6 July
2017: 15 November

PRACTICE AND PROCEDURE-application to set aside orders for mediation – motion to contain concise reference to Court’s jurisdiction to grant orders sought – motion dismissed for want of form – exercise of Court’s inherent power - Constitution, Section 155(3)(a) and (4) – National Court Rules, Order 1 Rule 10, Order 4 Rule 40(1)(c) and 49(8), Order 12 Rule 8(4)

PRACTICE AND PROCEDURE-application to set aside orders for mediation – previous application to revoke orders for mediation made under Rule 5(6) of Rules relating to the Accreditation, Regulation and Conduct of Mediators refused – current application relying on Constitution, Section 155(3)(a) and (4) – National Court Rules, Order 1 Rule 10 and Order 12 Rule 8(4) Order for abuse of process.

Cases cited:

Ekepe v Gaupe (2004) N2694
Mainland Holdings Ltd v Stobbs (2003) N2522
Public Officers Superannuation Fund Board v Paraka (2005) PGNC; N2791
Titi Christian v Rabbie Namaliu (1996) SC1583
Tulia v Lama (1998) PGNC 67; N1824
Tan v Pelis (1999) PGNC 121; N1985

Counsel:

Michael Finnane QC with Nickson Kiuk, for the plaintiff
Paul Mawa, for the Defendants, Mark Tony Ekapa, Michael Yandapake and Porgera Landowners Association Inc.
Judy Nandape, for the Defendant, Porgera Development Authority

RULING

15 November, 2017

1. DAVID, J: INTRODUCTION: This is a ruling on an application moved by the Plaintiff, Justice Foundation for Porgera Limited (JFPL) pursuant to a notice of motion filed on 21 March 2016 in proceedings entitled OS No.907 of 2014 which was consolidated with proceedings entitled OS No.813 of 2014 in which JFPL is also the plaintiff and in which JFPL essentially seeks an order that the orders made by his Honour Justice Kandakasi on 23 April 2015 and entered on 29 April 2015 and on 3 June 2015 be set aside ab initio.
   
2. The relevant notice of motion is in the following terms.
   

“Pursuant to Section 155(3)(a) and Section 155(4) of the Constitution of Papua New Guinea and pursuant to the inherent jurisdiction of the National Court of Justice of Papua New Guinea, the Plaintiff will at 9:30 am on 6^th day of April 2016 at Waigani move the Court for:

1. Orders pursuant to Order 1 Rule 10 and or Order 12 Rule 8(4) of the National Court Rules that:
   
   1. All orders made by His Honour Kandakasi J on 23 April 2015 (entered 29 April 2015, as amended) and 3 June 2015 in proceeding number 813 of 2015 are set aside, subject to subparagraph 1(c) below;
   2. All orders made by His Honour Kandakasi J on 23 April 2015 (entered 29 April 2015, as amended) and 3 June 2015 in proceeding number 907 of 2015 are set aside, subject to subparagraph 1(c) below;
   100. Notwithstanding that all orders made by his Honour Kandakasi J on 23 April 2015 and following are set aside, Order 2 made in proceedings 907 of 2014 by this Court on 5 March 2015 (entered 6 March 2015) in relation to the preservation of the Porgera Landowners Association’s assets is confirmed by the Court and remains in force until further order of the Court.
        
2. Orders pursuant to Section 155(4) of the Constitution of the Constitution of the Independent State of Papua New Guinea that:
   
   1. any purported Mediator’s Certificate filed in respect of these proceedings is void and of no legal force or effect; and
   2. any purported Mediation Agreement filed (or otherwise purportedly executed) in relation to these proceedings is of no legal force or effect.
      

For the purposes of compliance with Order 1 Rule 10 of the National Court Rules, the Plaintiff notes that objections insisted upon are as follows:

(i) the orders made on 23 April 2015 and 3 June 2015 by Kandakasi J were made contrary to the Alternative Dispute Resolution Rules;
(ii) the orders made on 23 April 2015 and 3 June 2015 by Kandakasi J were made without the plaintiff being provided the opportunity to be heard by the Court; and
(iii) the orders made on 23 April 2015 and 3 June 2015 by Kandakasi J exceeded the proper exercise of judicial power.

Consequential Orders

3. Orders pursuant to Section 7D(4) of the National Court (Amendment) Act 2008 that the matter be listed for:
   1. trial; or in the alternative;
   2. a directions hearing on a date suitable to the Court;
4. An order for costs; and
5. Further or other orders that the Court thinks fit and/or deems appropriate and necessary.”
   
3. JFPL relied on the affidavits of:
   
   1. Jonathan Manggope Paraia filed on 5 February 2016;
   2. John Ondalane filed on 21 March 2016 (first affidavit);
   3. Andita Keko filed on 21 March 2016;
4. Ruben Nalepe filed on 21 March 2016;
   5. Unjiali Koakalai filed on 21 March 2016);
   6. Pawe Menepa filed on 21 March 2016;
   7. Yanale Lare filed on 21 March 2016;
   8. Kimaleya Ondalane filed on 21 March 2016;
   9. Marakos Tekaipa filed on 21 March 2016;
   10. Kule Layo filed on 21 March 2016;
   11. Loo Eno filed on 21 March 2016;
12. Ipaya Lara filed on 21 March 2016;
    13. John Ondalane filed on 6 May 2016 (second affidavit).
        

4. At the hearing, paragraphs 47 to 52, 62 to 64, 67(h) to (p) and 68 of the affidavit of Jonathan Manggope Paraia were struck out upon objections by the defendants.

5. The defendants in both proceedings namely, Mark Tony Ekepa, Michael Yandapake, Porgera Landowners Association Inc. (the Association) and Porgera Development Authority (PDA), vigorously contested the application.

6. The defendants in OS No.907 of 2014 relied on the affidavits of:

1. Jethro Tulin sworn on 4 April 2016 and filed on 5 April 2016;
2. Mark Tony Ekapa sworn on 4 April 2016 and filed on 5 April 2016.
   

7. PDA relied on the affidavits of:

1. John Miukin sworn on 26 February 2015 and filed on 27 February 2015;
2. John Miukin sworn on 31 July 2015 and filed on 3 August 2015; and
3. Judy Nandape sworn on 15 April 2016 and filed on 5 May 2016.
   

8. No objection was raised by the other parties, particularly by the plaintiff for the use of these affidavits which were filed in OS No.813 of 2014.

BRIEF BACKGROUND FACTS

9. By originating summons filed on 24 December 2014, JFPL claims the following relief:

“1. A declaration that the plaintiff is a duly incorporated company which is a corporate entity owned by 14 Landowner Committee Agents representing 14 of the 24 customary landowning clans with the Special Mining Lease (SML) area of the Porgera Gold Mine in Enga Province.

2. A declaration that the Plaintiff was duly appointed by virtue of a Power of Attorney given to it by the 14 Landowner Committee Agents representing 14 of the 24 customary landowning clans within the Special Mining Lease (SML) area of the Porgera Gold Mine in Enga Province.
   3. An order that the term of office of the First Defendant as Chairman of the Third Defendant (Association) and his officers expired in 1998 as such any actions, decisions, transactions, agreements whatsoever done, committed or purported to be done by the First and Secodn Defendants and/or their agents or servants whosoever are void ab initio.
   4. An order that an urgent AGM be conducted within 21 days upon grant of the within orders to vote new office beares for the Third Defendant. That the AGM be conducted in public and in the presence of all the original members of the Third Defendant Association including the original Committee Agents of the Porgers SML Landowners or their duly appointed replacements through the normal customary process by which the original 24 Committee Agents were appointed.
   5. A permanent injunctive order be granted against the First and Second Defendants, their servants or agents whosoever from assrting him or themselves as the Chairman, Deputy Chairman, Treasurer, Secretary, public Officer or whatever official capacity in respect of the Third Defendant, until by an order of the Honourable Court.
   6. Any such other orders that this Honourable Court deems fit.
   7. Costs.”
      

10. The orders that the plaintiff seeks to set aside which were made on 23 April 2015 and entered on 29 April 2015 and on 3 June 2015 are set out below.

23. April 2015
    

“1. The issues raised in this proceeding and the proceeding OS No.813 of 2014 – Justice Foundation for Porgera Limited v Porgera Development Authority be resolved by a combined process of mediation and an annual general meeting (AGM) of the Porgera Landowners Association Inc. (Association) which shall be conducted at Porgera in the Enga Province.

2. The 24 sub-clans who are the customary land owners of the current Porgera Special Mining Lease shall in separate meetings facilitated by the mediators appointed under term 3 of these orders resolve the issues of:
   • (a) who are the legitimate 24 LNC Agents and entitled to constitute and be involved in the affairs of the Association; and
   • (b) whether each of the sub-clans wish to have the current arrangements for the receipt and management of their royalties and other benefits of the Porgera Gold continue or have a new arrangement and determine what the new arrangement is as well as any issues of concern to them.
3. Accredited mediators His Worship Deputy Chief Magistrate (Lands) Mark Pupaka and Mr Andrew Kwimberi (external mediator) are appointed to conduct the mediations and the AGM.
   4. The AGM shall be held immediately upon the 24 sub-clans resolving the issues outlined in term 2 of these orders and the agenda for the AGM shall be discussed and settled by the duly appointed 24 sub-clan representatives or agents, which shall amongst others include the Association’s members, its records, giving of accounts, election or appointment of officers and any particular resolutions or positions taken by any or all of the sub-clans through their duly appointed or elected representatives or agents.
   5. Unless the parties are able to agree on an agenda and promptly proceed with the AGM, the mediators shall facilitate meetings to settle the agenda and also chair the AGM.
   6. The Association shall on behalf of all of the parties pay by no later than 14^th May 2015:
      • (a) the total costs of the Court’s Mediation Service fees fixed at K1,000.00; and
      • (b) the external mediators fees which shall be ascertained through discussion and agreement reached between the parties and the external mediator by 8^th May 2015.
   7. The Registrar of Companies and Associations or his delegate, preferably his deputy, shall attend the AGM and the various mediations referred to in term 1 of these orders.
   8. The Porgera District Administrator and the Porgera Mine Coordinator shall provide all relevant records and documents in relation to the 24 LNC Agents comprising the Association and be on hand to participate at the mediations only to the extent the mediators necessary and appropriate.
   9. The parties and their legal representatives, the mediators and the Registrar of the Companies shall discuss and agree by no later than 14^th May 2015 the dates and time but not exceeding June 2015 as well as a convenient location(s) in Porgera for the AGM and the mediations to take place and provide an appropriate draft order reflecting such agreement for the Court to issue a chambers order reflective of such agreement.
   10. At the AGM, the plaintiff shall be led by Jonathan Paraia and his legal representative, the PDA shall be led by John Miukin and his legal representative and the Defendants shall be led by Mark Tony Ekepa and his legal representative.
   11. The Commander of the State of Emergency in Porgera shall ensure that there is adequate security provided to maintain peace and good order and allowance made for the AGM and mediation meetings to proceed from the date of their commencement to the date of their conclusion at which dates shall be confirmed by chambers orders under term 9 of these orders.
   12. For the purposes of meeting term 6 of these orders and a meeting of the following expenses:
       • (a) all landowners and the Association’s lawyers reasonable fees subject to those fees being put in taxable form and approved by each of the sub-clans through their duly appointed representatives or agents at the AGM and falling any agreement on that as approved by the mediators; and
       • (b) cost strictly required and approved by the mediator for the mediation and the AGM.

term 2 of the orders of 5^th March 2015 issued by this Court are varied to allow the Association to transact on its accounts only for these purposes.

13. That each party shall meet their own costs of their travel and other costs of necessary for their attendance at the AGM and the mediations.
14. The lawyers of all parties shall establish contact with the mediators forthwith and take all steps necessary to give effect to these orders and ensure that the mediations and the AGM commences at the end of May and concludes by the end of June 2015 and the Court retains the power to issue such orders or directions or communication to ensure compliance of these orders.
15. This matter will return to the Court on 3^rd June, 2015 at 9:30am, whether or not the mediations and AGM’s have concluded.
16. The time for entry of these orders is abridged to take place upon the Court signing the orders.”
    

3 June 2015

“1. Term 12 of the Court Orders of 23^rd April, 2015 and Term 02 of the Court Orders of 05^th March, 2015 are varied to the extent that the freeze or restraint placed on the bank accounts of Porgera Landowners Association Inc. is lifted or removed to allow the Porgera Landowners Association Inc. to transact on its bank accounts to access funds to meet the costs of the Mediation and all other necessary expenses such as its lawyers legal fees, mediation fees, hire of mediation venue, hire cars and accommodation for Lawyers and Mediators, security personnel’s allowances and or transport costs and such other necessary and incidental costs as approved by the Mediators.

2. All reasonable costs incurred in Wabag on 21^st May, 2015 to 24^th May, 2015 for Lawyers and Mediators in terms of their travel, hire car and accommodation shall be reimbursed by the Porgera Landowners Association Incorporated.
3. All the 24 LNC Agents constituting the Porgera Landowners Association Inc. must be present at Wabag and Porgera on 18^th June, 2015 to 22^nd June, 2015 for the continuation of the Mediation.
4. All the original 24 LNC Agents and other persons who replaced them as LNC Agents shall make it their business to attend and participate in the Mediation at Wabag and Porgera from 18^th June, 2015 to 22^nd June, 2015 and any failure by them to attend and participate in the mediation shall mean that they cease to be LNC Agents.
5. All the 24 LNC Agents are not allowed to claim any allowances for their participation and attendance at the Mediation at Wabag and Porgera from 18^th to 22^nd June, 2015.
6. Any persons, including the 24 LNC Agents, who take any steps or action that is contrary to or frustrate the compliance of these Orders shall be charged with Contempt as being in Contempt in the face of the Court.
7. The matter returns to Court on 07^th July, 2015 at 9:30 am for further mention.
8. The time for entry of these Orders is abridged to the date of signing of these Orders.”
   

SUMMARY OF EVIDENCE OF PLAINTIFF
11. The plaintiff’s evidence essentially is that they neither consented to mediation nor did they participate in mediation: see affidavits of John Ondalane’s first affidavit, Andita Keko, Ruben Nalepe, Unjiali Koakalai, Pawe Menepa, Yanale Lare, Kimaleya Ondalane, Marakos Tekaipa, Kule Layo, Loo Eno and Ipaya Lara.

12. Jonathan Manggope Paraia is a leader of the people living in the Special Mining Lease area around Porgera and is one of the principal landowners in the area. He is currently the Chairman of the Plaintiff company. He was formerly the Public Officer of the Association and has been intimately involved in and is familiar with the affairs of the Association since its formation in 1992. The Plaintiff is a company which was duly incorporated on 25 March 2014.

13. The Plaintiff has 14 shareholders constituted by 14 Landowner Agents and they are; Ipaia Lara (Tiyani clan-Kamimalo sub-clan); Nixon Mangape (Tiyani clan-Wuape sub-clan); Kimalea Ondalane (Tiyani clan-Yagua sub-clan); Maso Karipe (Waiwa clan-Lunda sub-clan); Mark Ambi (Tuanda clan-Ulupa sub-clan); Kule Layo (Pulumaini clan-Ambo-Wagia sub-clan); Yanale Lare (Pulumaini clan-Ambo-Ano sub-clan); Ruben Nalepe (Pulumaini clan-Ambo-Endewe sub-clan); Pera Itawi (Pulumaini clan-Ambo-Gai sub-clan); Andita Keko (Pulumaini clan-Yuga-Nalape sub-clan); Pawe Menepe (Angalaini clan-Oyopen sub-clan); Marakos Tekaipa (Angalaini clan-Hulewali sub-clan); Unjiali Koakalai (Anga clan-Auga sub-clan); and Loa Eno (Pulumanini clan-Yuga-Epeya sub-clan).

14. The 14 Landowner Agents are financial members of the Association whose clan royalty payments are paid by the Porgera Gold Mine to the Association. Those Landowner Agents were signatories to various mining agreements with the State and other parties in relation to the Porgera Gold Mine in the period 1988 to 1989 including the Memorandum of Agreement entered into between the State and the Porgera Landowners dated 12 May 1989 (the MOA) in exchange for giving up their land for mining purposes. Although he is not a Landowner Agent for the purposes of the Association, as Chairman of the Plaintiff, he represents the rights and interests of the 14 Landowner Agents.
    
15. Upon the establishment of the Porgera Gold Mine in or about 1989, a large area of land was designated as a Special Mining Lease (SML) area. A total of 24 clans own and occupy land within the SML. Each of the 24 clans appoint their own Landowner Agent who is either a principal landowner or chief to represent their interests in relation to the operation of the contracts and administration of the SML and the Porgera Gold Mine and the various related legislative bodies associated with those entities including the PDA and the Association. Each of the original Landowner Agent inherited that position by virtue of their customary laws of succession and practice.
    
16. The Plaintiff was formed to seek justice for the landowners who have suffered significant and irreparable loss and catastrophic damage as a result of the social, economic and environmental damage caused by the operation of the Porgera Gold Mine over the years. The Association was established to represent the interests of the traditional landowners of the land located in the SML, but has failed the landowners in that regard. The Plaintiff therefore is a convenient vehicle through which the 14 Landowner Agents can advance and progress their collective agenda and speak as one voice particularly in relation to Porgera Gold Mine and the royalty payments from the mine.
    
17. The proceedings in OS No.813 of 2014 and OS No.907 of 2014 essentially were instituted for different reasons. The primary purpose for instituting OS No.813 of 2014 was to attempt to obtain information and transparency in respect of the financial dealings of the PDA. The primary purpose for instituting OS No.907 of 2014 was to have the Court determine the identities of the 24 Landowner Agents who are the current members of the Association and to cause the administration of the Association to be managed properly in accordance with its Constitution and the law governing incorporated associations in Papua New Guinea. The Association has never made any decision to amend the original list of 24 Landowner Agents or to amend its Constitution.
    
18. The 14 Landowner Agents who are shareholders of the plaintiff are concerned that both the PDA and the Association have, for some time, been mismanaged particularly with regard to the distribution of royalty payments from the Porgera Gold Mine. No AGMs have been held for many years by the Association and there has been no auditing of accounts or the production of financial statements in accordance with its Constitution and law governing incorporated associations in Papua New Guinea.
    
19. He provides an explanation about the plaintiff’s position with regard to the mediation exercise ordered by the Court and the extent of their participation and that he had instructed their lawyer, Mr. Kiuk to write to the mediators expressing the plaintiff’s view that all orders made by his Honour Justice Kandakasi in April 2015 were invalid and of no force or effect and all events that took place since that time including any purported mediation or meeting of the Association were invalid. Mr Kiuk wrote to the mediators by his letter dated 22 November 2015 which was distributed by email on 23 December 2015 (annexure “M”) as instructed and also advising that the 14 landowners represented by the Plaintiff did not consent to the purported mediation. Mr Kwimberi, one of the mediators responded by email on 24 December 2015 stating that the mediation process should be completed (annexure “N”).
    
20. In John Ondale’s first affidavit, he addresses the question of a Mediator’s Certificate being issued by accredited mediators, Mr Mark Pupaka DCM and Mr Kwimberi with regard to the purported mediation. Mr Kwimberi by email on 22 February 2016 to Jonathan Paraia informed him that a Mediator’s certificate had been issued by lead Mediator Mark Pupaka and he had endorsed it. That email was forwarded to him by Jonathan Paraia on 22 February 2016. Two Mediator’s Certificates both dated 27 December 2015 were issued (annexures “E” and “F”). In an email by Mr Kwimberi to Mr Kiuk on 8 March 2016, he advised that the final Mediator’s Certificate was being processed and will be filed (annexure “H”).
    
21. He also took issue with the public notice placed for the holding of the Associations AGM (annexure “B”).
    

22. In John Ondalane’s second affidavit, he makes statements, inter alia, in respect of the financial dealings or transactions conducted in bank accounts of the Association, PDA and Kaiyandupi Investments Limited.

SUMMARY OF EVIDENCE OF PORGERA DEVELOPMENT AUTHORITY

Jethro Tulin
23. John Miukin is the General Manager of PDA which is also known as the Porgera Special Purposes Authority.

24. PDA manages the royalty funds for the landowners. It receives 5% from these funds as management fee.

25. In his affidavit sworn on 26 February 2015 and filed on 27 February 2015, he gives an account of the history about the establishment of the defendant. A Memorandum of Agreement was signed between Porgera Rural Local-level Government, Paiela Hewa Rural Local-level Government, Porgera Local-level Government Special Purposes Authority and the Association in 1998 (the MOA) which was done in relation to the proclamation of Porgera Local-level Government Special Purposes Authority. It addressed, inter alia, matters such as functions, management, funding, staffing, settlements of disputes and proclamation of the Authority. On 12 November 1998, the Governor General, Sir Silas Atopare by a Proclamation declared Porgera Local-level Government Special Purposes Authority as a Local-level Government Special Purposes Authority under Section 42(1) of the Local-level Governments Administration Act 1997. The Porgera Local-level Government Special Purposes Authority was the successor to the Porgera Development Authority established by the Porgera Development Authority Act 1989 of the Enga Provincial Government. Clause C of the Proclamation provides that the Porgera Local-level Government Special Purposes Authority was established for the general purposes of assisting the implementation of the functions of the Porgera Rural Local-level Government and of the Paiela/Hewa Rural Local-level Government. Clause (F) of the Proclamation also provides that the Porgera Local-level Government Special Purposes Authority shall, in addition to any other functions as may be determined from time to time, act as an agent for the National Government in relation to the Porgera Mining Agreements and all other Porgera Mining Development Agreements as may apply, in order that the National Government may maintain its part of the Agreements, such agency functions being provided for at Section 48(4) of the Local-level Governments Administration Act 1997.

26. The Porgera Local-level Government Special Purposes Authority has a constitution. Clause 36 of the Constitution of the Porgera Local-level Government Special Purposes Authority provides that it was established for public purpose. Clause 15 sets out its functions and one of the functions specified at sub-clause (g) was to receive royalties paid to it by the Provincial Government and pay those royalties to the landowners in accordance with the terms of the Porgera Mining Agreements.

27. The 24 LNC Agents did not at any time appoint Porgera Local-level Government Special Purposes Authority as their trustee to manage royalty funds for them or the customary landowners. The basis upon which the Authority has been managing the royalties is as per the Mining Agreement, MOA, the Proclamation and the Constitution of the Authority. As far as the Porgera Local-level Government Special Purposes Authority was concerned, the Association was the mandated body that represents the people of the Porgera SML area recognized by the developer, the State and other non-governmental organizations.

28. He was aware that the Court on 23^rd April 2015 ordered for the issues raised in these proceedings and in OS No.907 of 2014 to be resolved by mediation and an annual general meeting of the Association to be conducted at Porgera. Mediation was scheduled to commence from 21 May to 24 May 2015 at the National Court premises in Wabag. He was present on those dates.

29. Lawyers representing the defendants, the mediators Messrs Pupaka, DCM and Kwimberi and Mark Tony Ekapa and his faction were present on the morning of 21 May 2015. Jonathan Paraia and his faction arrived in the afternoon, but did not want to proceed without his lawyer who had not yet arrived at the time. They spent the time talking about logistics. Mediation was adjourned to the next day, 22 May 2015.

30. On 22^nd May 2015, they met at the Wabag National Court in the morning. Mr. Kiuk, lawyer for the plaintiff had not yet arrived at the time, so Mr Paraia did not want to proceed in his absence. They continued to talk about logistics. Mr Kiuk arrived in Wabag late in the afternoon and a brief meeting with mediators took place when the mediators adjourned to the next day, 23^rd May 2015.

31. Mediation commenced on 23^rd May 2015, but not much progress was made. The mediation was again adjourned to the next day, 24^th May 2015.

32. On 24^th May 2015, except for the Plaintiff’s lawyer, Mr Paraia and his faction were not present at the mediation. There was nothing to be achieved without the presence of Mr Paraia so mediation was again adjourned to a date and time to be confirmed.

33. During the mediation exercise conducted from 21^st May 2015 to 24^th May 2015, Mr Tulin observed that the Plaintiff’s faction and their lawyer did not want to fully participate in the mediation process.

34. Mediation process was conducted between 18^th June 2015 and 21^st June 2015. The two mediators were present. As lawyers had not arrived, mediation which was to be conducted at the Wabag District Court was adjourned to 19^th June 2015.

35. On 19^th June 2015, mediation was conducted at the Wabag District Court. Lawyers for the defendants were present. Mr Paraia and his faction were also present, but their lawyer was not. Mediation commenced at around 11:00 am and concluded at around 4:00 pm. The mediation was adjourned to continue at Porgera Station.

36. On 20^th June 2015, mediation was conducted at Porgera. Mr Paraia and his faction and their lawyer were not present. They waited for them until 11:00 am. They thereafter started the mediation and concluded it around 5:00 pm.

37. Mediation continued around 9:00 am on 21^st June 2015 and concluded at about 2:00 pm.

38. The only entity representing the Porgera SML Landowners that PDA has been dealing with since its establishment is the Association. If the beneficiaries of the royalty payments want different arrangements for the distribution of their royalties, then they can have that arrangement in consultation with their mandated association, the PDA, the developer and the District administration.

Judy Nandape
39. She is the lawyer for PDA and as such is well aware of the background facts of this case. She sets out a summary of the chronology of events leading up to various applications that have been filed and pending before the Court and they are tabulated below as she has put them.

SUMMARY OF EVIDENCE OF THE DEFENDANTS
40. Mark Tony Ekepa was elected as Chairman of the Association during the Annual General Meeting supervised by accredited mediators held on 2^nd March 2016.

41. Andita Keko, Ruben Nalepe, Unjiali Koakalai, Pawe Menepa, Yanale Lare, Kimaleya Ondalane, Marakos Tekaipa, Kule Laiyo, Loo Eno and Ipaya Lare are currently not the appointed or elected Landowner Agents of the clans they claim to represent.

42. The date and location where the AGM was to be convened was clearly conveyed. Under the Constitution of the Association, only financial members of the Association were required to attend the AGM and not anybody. The Agenda of the AGM was set by the Court through the directions and orders issued by the Court in the proceedings and the Chairman of the plaintiff and its lawyers were fully aware of it.

43. Since the commencement of these proceedings, the Court has issued directions and orders for the contested issues arising in the proceedings and affected to be resolved through Mediation and the consequent election of landowners’ agents and the calling of the AGM were issues that proceeded as part of the mediation process.

44. The plaintiff’s chairman, Jonathan Paraia was their team leader in the proceedings and the Mediation exercise and had he and his lawyer not acted in bad faith to frustrate the Mediation process, they would have dealt with those issues including the question of convening an AGM for the Association and the election of new Executives of the Association and inform the directors of the Plaintiff on the progress of the proceedings.

45. Since the issuing of Court orders freezing the bank account of the Association, the Association had to borrow from “loan sharks” to meet its operational costs such as the payment of staff salaries. The representatives of the SML Landowners clans and new Executives having been elected during the AGM, the freeze on the Associations bank account should be lifted so that the Association can function to achieve its intended purposes and objectives.

46. Jethro Tulin is the Executive Officer of the Association. He was the Minute Secretary when the Association held its Special General Meeting on 29 March 2016. A copy of the meeting minutes is attached to his affidavit as annexure “A”.

ISSUES
47. The main issue that arises from the Plaintiff’s application that I need to decide is whether the orders made by his Honour Justice Kandakasi on 23 April 2015 and entered on 29 April 2015 and on 3 June 2015 should be set aside?

48. Peripheral issues that arise as to questions of competency of the Plaintiff’s notice of motion and abuse of process of the court will be addressed first. If these issues are decided in favour of the Plaintiff, I will then consider and determine the main issue.

PLAINTIFF’S SUBMSSIONS
49. The Plaintiff essentially submits that the orders should be set aside ab initio on the basis that they were not consent orders which the transcript will show and the Court in ordering mediation and ordering mediators to conduct or facilitate an annual general meeting of the Association acted beyond its powers.

50. In addition, it was submitted that orders for mediation were required to be made in accordance with provisions of the; National Court Act as amended in 2008 and the Rules Relating to the Accreditation, Regulation and Conduct of Mediators (the ADR Rules). It was further submitted that Associations incorporated under the Associations Incorporation Act are governed by the provisions of that Act and the rules of the Association so annual general meetings of such associations were required by law to be conducted in accordance with that Act and their Rules. It was also submitted that there was no power given to the National Court or the Mediators to facilitate or conduct the annual general meeting of an association as part of mediation.

51. It was submitted that Order 4 of the orders made on 23April 2015 was an order made beyond the power of the Court since it has no statutory or inherent jurisdiction to order the holding of annual general meetings of an association as part of a mediation process. Mediations are consensual in nature and do not necessarily result in successful agreements to resolve all issues in litigation or pending litigation and in the present case not all parties agreed to mediation of the issues arising between them in the litigation.

52. It was also submitted that Orders 3, 4 and 6 made on 3 June 2015 were orders made beyond the powers of the Court for reasons that whilst the Court has power to order that a mediation be held, it has no power to; confine the liberty of a person by requiring his attendance at any meeting; to impose a penalty for non-attendance; or to be threatened with possible contempt proceedings.

53. It was submitted that contrary to the defendants’ contention, the Court’s jurisdictional basis was properly invoked in the notice of motion.

54. As to res judicata and issue estoppel, it was submitted that they did not apply in the present case.

DEFENDANTS’ SUBMISSIONS

Mark Tony Ekepa & Ors
55. It is submitted by these defendants that the application should be dismissed on the following grounds.

56. First, the application was incompetent in that there is no jurisdictional basis for the relief sought. Sections 155(3) and (4) of the Constitution and Order 1 Rule 10 of the National Court Rules were not the proper jurisdictional basis as; in the case of Sections 155(3) and (4) of the Constitution, they can be involved in limited circumstances as a last resort where there were no clear provisions under the National Court Rules or the Supreme Court Rules or the enabling legislation and where there are no clear procedures to be followed; and in the case of Order 1 Rule 10 of the National Court Rules, it applied to applications to set aside proceedings and not court orders. As to reliance on Order 12 Rule 8(4), it was submitted that that rule is only applicable to set aside orders made inter partes on very exceptional circumstances and counsel referred the Court to the National Court decisions of Ekepe v Gaupe (2004) N2694, Mainland Holdings Ltd v Stobbs (2003) N2522.

57. Second, the application amounts to an abuse of process of the Court. It was an abuse of the process of the Court on the basis that the application runs afoul of the principles of res judicata and issue estoppel. In support of that proposition, counsel referred me to the cases of Tulia v Lama (1998) PGNC 67; N1824; Tan v Pelis (1999) PGNC 121; N1985 and Titi Christian v Rabbie Namaliu (1996) SC1583.

58. Third, if the Court finds that there is jurisdictional basis for the relief sought, the plaintiff has failed to satisfy the requisite requirements for the relief to be granted.

Porgera Development Authority
59. PDA made similar submissions as those advanced by the defendants, Mark Ekepa and others which it adopted.

60. In addition, it was submitted that the orders sought to be set aside were made during the course of inter partes hearings as the transcripts will show.

61. It was also submitted that the Plaintiff’s application was an abuse of the process of the Court as a similar application filed by the plaintiff on 13 May 2015 to revoke the orders of 23 April 2015 pursuant to Rule 5(6) of the ADR Rules was refused by Justice Kandakasi on 3 June 2015.

WHETHER THE NOTICE OF MOTION SHOULD BE DISMISSED FOR WANT OF FORM?
62. Order 4 Rules 40(1)(c) and 49(8) of the National Court Rules require that all motions must contain a concise reference to the Court’s jurisdiction to grant the orders sought.

63. In the present case, reliance is placed on Section 155(3)(a) and Section 155(4) of the Constitution and Order 1 Rule 10 and Order 12 Rule 8(4) of the National Court Rules.

64. Section 155(3)(a) of the Constitution confers upon the National Court an inherent power to review any exercise of judicial authority. The power to review concerns exercise of judicial authority which usually relates to the exercise of judicial authority by a judge or magistrate within the National Judicial System. This to my mind is not a source of primary jurisdictional power so it cannot be applied to do anything contrary or inconsistent with the provisions of the National Court Rules.

65. Similarly, Section 155(4) is not a source of primary jurisdictional power so it also cannot be applied to do anything contrary or inconsistent with the provisions of the National Court Rules.

66. Order 1 Rule 10 of the National Court Rules is also not a source of primary jurisdictional power. Under that rule, an applicant applying to set aside any proceeding for irregularity is required to state the several objections in the notice of motion.

67. Order 12 Rule 8 of the National Court Rules gives the Court power to vary or set aside judgments or orders that have been made by the Court and they include consent orders or orders obtained ex parte. Sub-section 4 upon which the plaintiff relies states:

“In addition, to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.”

68. Do the orders sought to be set aside fall within the exceptions covered by this rule.

69. The plaintiff vehemently contends that they were not consent orders so they should be set aside ab initio. There is evidence before the Court that the orders sought to be set aside were made at inter partes hearings. The orders were not obtained ex parte. They were made with the knowledge of the Plaintiff when it participated at the hearings. Whether it agreed or not with the orders is another matter. It is trite law that the Court does not have power to set aside or vary final judgments that have been regularly entered: Public Officers Superannuation Fund Board v Paraka (2005) PGNC; N2791. In the present case, I think the nature of the orders sought to be set aside do not fall within the exceptions covered by Order 8 Rule 8(4) of the National Court Rules. Rule 5(6) of the ADR Rules provides that the Court may make or vary an order for mediation at anytime, but before the conclusion of the mediation. There is evidence to show that mediation has been concluded, a mediated agreement signed and Mediator’s Certificate issued. So the Plaintiff cannot rely on Order 12 Rule 8 as the jurisdictional basis to set aside the orders of 23 April 2015 and 3 June 2015. Its remedy was by way of an appeal or an application for review to the Supreme Court.

70. In the result, the notice of motion filed on 21 March 2016 is incompetent. In the usual case, I would have struck out the notice of motion, but for reasons I give below and in the exercise of my inherent power, it is dismissed. The orders sought to be set aside are refused.

71. In case I am wrong (which I think I am not) in arriving at the above conclusion, I will briefly address the issue of abuse of process.

WHETHER THE APPLICATION WAS AN ABUSE OF PROCESS?
72. There is evidence to show that a similar application was filed by the plaintiff on 13 May 2015 to revoke the orders of 23 April 2015 pursuant to Rule 5(6) of the ADR Rules and was refused by Justice Kandakasi on 3 June 2015 and his Honour went on to vary the orders at the same time. Copies of the relevant notice of motion and order are annexed to Ms. Nandape’s affidavit as annexures “C” and “D”. This is a clear case of an abuse of process of the Court although the present application was pursued under provisions of the Section 155(3) and (4) of the Constitution and Order 1 Rule 10 and Order 12 Rules 8(4) of the National Court Rules. It is for this reason that I will dismiss the Plaintiff’s application for being an abuse of the process of the Court.

73. It is now not necessary to address other arguments raised by the parties.

ORDER

74. The formal orders of the Court are:

1. The Plaintiff’s application moved pursuant to its notice of motion filed on 21 March 2016 to set aside the orders made by Justice Kandakasi on 23 April 2015 and entered on 29 April 2015 and 3 June 2015 is dismissed.
2. All relief sought by the Plaintiff in the notice of motion filed on 21 March 2016 are refused.
3. The costs of the application shall follow the event, i.e., the plaintiff shall bear the defendants’ costs of the application, to be taxed, if not agreed.
   

Ordered accordingly
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Nikiuma Lawyers : Lawyers for the plaintiff
Nandape Lawyers : Lawyers for Porgera Development Authority
Mawa Lawyers : Lawyers for Mark Tony Ekepa & Ors