Natto v Sakai [2019] PGNC 160; N7866 (9 May 2019)

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OS No.385 of 2014
BETWEEN:
JOHN KAPI NATTO, former Interim Chairman of Namo’aporo Landowners Association
First Plaintiff

AND:
PETER HENO, EMMA ATAKARO and ROY FASO, Former Interim Management Committee of Namo’aporo Landowners Association
Second Plaintiffs

AND:
MARK SAKAI duly elected Chairman, Namo’aporo Landowners Association
First Defendant

AND:
DONALD WASAI, RONNIE MUTU and SAKAI KEI, duly elected Management Committee of Namo’aporo Landowners Association
Second Defendants

AND:
KALA RAWALI, Returning Officer of PNG Electoral Commission
Third Defendant

INCORPORATED ASSOCIATION - election of office bearers – management committee – court ordered annual general meeting – two factions – fight between supporters of factions prior to meeting commencing inside and outside of venue of meeting – meeting held by one faction – whether there was quorum – Associations Incorporation Act.

Joshua v Meya (1988-89) PNGLR 188
Kawage v Mondu (1999) PNGLR 543
Marika v Silari (2004) PNGLR 239
Namaliu v Haiveta (2004) N2693
Tau Mavara Kamuta v David Sode (2006) N3067
The State v Jacob Dogura Roy (2007) N3137
Michael Gene v Royale Thompson (2007) N3254
Kuyan v Sallel (2008) N3376
Peter Pagi v Wilfred Mindili (2009) N3753
John Mur v Les Kewa (2010) N4016
Gary Maso Paya v Ronald Silovo (2011) N4422
OS No.385 of 2014, John Kapi Natto & Ors v Mark Sakai & Ors delivered Injia, CJ on 23 June 2014

Edward M. Waifaf, for all the Plaintiffs, except Peter Heno
Ignatius Mambei, for the Plaintiff, Peter Heno
Francis Alua, for the First and Second Defendants
Kevin Kepo, for the Third Defendant

“1. A declaration that the purported election of the Management Committee of Namo’aporo Landowners Association (NLA or Association) and scrutiny of votes of the 59 out of the 117 registered ILG Chairmen/Nominees who cast votes for the first and second defendants for the positions of Chairman, Deputy Chairman, Treasurer and Public Officer of the Association as conducted by the third defendant and his officers on the 30^th May 2014 court ordered Annual General Meeting (AGM) is null and void as the purported elections were conducted ultra vires the NLA Constitution of 1994, especially Clause 9.5 and further, the purported AGM of the Association lacked a lawful quorum for lawful elections to be conducted.

3. The Association is an association incorporated for the Fasu people who live within the Kutubu Oil Project area in the Southern Highlands Province. It represents the interest of the Fasu people affected by the Kutubu Oil Project.

4. The Association was incorporated under the Associations Incorporation Act around 1994. Initially it had 58 members. Each member incorporated land group (ILG) is one of the landowning clans of the Fasu tribe living within the Kutubu Petroleum Development License 2 (PDL2) area. Each member is represented in the Association by the ILG Chairman or his/her nominee to attend and cast votes in any Annual General Meeting (AGM). In or about the year 2000, the Association adopted 59 ILGs and the membership of the Association increased to 117 ILGs.

5. The elections on 30 May 2014, the results of which were formally declared on 4 June 2014 by the third defendant, Kala Rawali came about after the first plaintiff, John Kapi Natto successfully took out court proceedings, OS No.647 of 2010 – John Kapi Natto v Mark Sakai (the prior proceedings) to nullify the purported election of the first defendant, Mark Sakai and his office bearers in the 2010 AGM. On 13 February 2013, His Honour, Kariko, J decided in favour of the first plaintiff, nullified the election of the first defendant and his office bearers and appointed the first plaintiff and his office bearers as Interim Office Bearers to oversee in the interim the Association and prepare the Association for election proper. The Interim Office Bearers were, Acting Chairman, the first plaintiff, Acting Deputy Chairman, Emma Atakaro, Acting Treasurer, Peter Heno and Public Officer, Roy Faso.

8. Before 30 May 2014, all registered members eligible to attend the AGM congregated with their choice of office bearers and the ones supporting the first plaintiff went into camp with him and likewise, the ones supporting the first defendant went into camp with him.

9. On 30 May 2014, all registered voters gathered at the venue for the AGM which was within the premises of the Association’s office at Moro, Lake Kutubu to attend the AGM and were admitted to the meeting venue. Circumstances giving rise to a fight amongst supporters of first plaintiff and the first defendant caused the first plaintiff and his group to leave the meeting venue before it was formally opened. In their absence, the AGM presided over by the first defendant upon being elected to chair the meeting by his supporting ILG Chairmen proceeded and the election of the office bearers of the Association was conducted by the third defendant as a result. The plaintiffs and the first and second defendants were pitted against each other in the positions they had nominated for namely, the Association or Management Committee Chairman, Deputy Chairman, Treasurer and Public Officer. In the absence of the first plaintiff and his group, the first and second defendants were voted in to their respective positions with 59 votes to zero for each position.
10. On 4 June 2014, the third defendant made the formal declarations.

11. The plaintiffs and the defendants relied on oral and affidavit evidence. The first plaintiff and Peter Heno gave evidence for the plaintiffs while the first defendant, Chief Inspector Edward Aupong, Senior Sergeant Epara Piuk and Kala Rawali gave evidence for the defendants. The respective affidavits were tendered through the respective deponents of the affidavits and each of the deponents/witnesses were subjected to cross-examination.

14. Until the purported election of the office bearers of the Association on 30 May 2014 and declarations of the result of the purported election made by the third defendant on 4 June 2014, he was the Interim Chairman of the Association appointed pursuant to a court order of 13 February 2013 issued in the prior proceedings.

15. The Association was incorporated under the Associations Incorporation Act on 5 July 1994. Annexure A of Exhibit A is a true copy of the certificate of incorporation of Namo’aporo Landowners Association Inc. Annexure B of Exhibit A is a true copy of the Constitution of the Association. Upon incorporation of the Association, the Chairman was Sosoro Hewago, Deputy Chairman Henry Sasue, Treasurer Peter Heno and Public Officer, himself.

16. The Association was incorporated to be a vehicle to represent the interests of the affected landowners from the Fasu tribe situated within the Kutubu Petroleum Development Project area (PDL2) of the Kutubu Oil Project in the Southern Highlands Province. Fasu is one of the two major tribes situated within the PDL2 Kutubu Oil Project area. The other tribe is Foe which is represented by the Foe Association.

17. The Association is privy to most of the project agreements relating to the Kutubu Oil project and the LNG project.

18. Upon incorporation, the Association had 58 members being customary landowning clans who were incorporated or being incorporated as land groups at the material time. The Constitution of the Association lists the names of the original members.

19. He was unanimously elected Chairman of the Association in 1996 when the Chairman’s position became vacant. The first defendant became the Public Officer.

20. As Chairman of the Association, he holds trustee positions in most landowner companies that the landowners from Namo’aporo have an interest in and in his tenure, he has been involved in making investment decisions which has seen some of the companies grow. Currently the trustee companies have made investments with significant returns in some businesses namely, Kutubu Security Services Ltd, Petroleum Resources Kutubu Ltd, Bank of South Pacific Ltd, Well Gris Fuel Distributors, Hevi Lift PNG Ltd, Pearl South Pacific Hotel Fiji, Exxon Mobil & LNG Project, Hotel & Land Development, Ela Beach and Pacific Properties Trust. Annexures A, B, C, D to Exhibit C are trues copies of company extracts for Kutubu Security Services Ltd, Petroleum Resources Kutubu Ltd, Bank of South Pacific Ltd and Hevi Lift (PNG) Ltd respectively. The transition in the leadership of the Association will have a domino effect in that the first defendant and his Management Committee will cause changes including taking over positions he holds which will negatively affect the fragile investments he has made in those companies and having access to the Association’s funds: see annexures E and F to Exhibit C.

21. The quorum for an AGM is specified by Clause 9.5 of the Constitution. It is to be constituted by 40 registered ILG Chairmen or their nominees which represents 68.95% of the total membership of 58.

22. Due to the increase in population, further 59 ILGs were incorporated and adopted in the year 2000 increasing the membership to 117.

23. The Constitution of the Association was not amended after the year 2000 to reflect the increase in membership by 59 members and correspondingly vary the quorum due to the increase in membership.

24. When it was put to the witness in cross-examination by Mr Alua for the first and second defendants that when the membership of the Association was increased to 117, no resolution was passed to amend the quorum to correspond with the increase in membership, he said yes.

25. When it was also put to the witness in cross-examination by Mr Alua that the notice of the AGM did not specify the quorum for the AGM because there was no agreement on that, he agreed that the quorum was not specified.

26. The first defendant unilaterally amended the Constitution of the Association and that was nullified by orders of Kariko, J on 13 February 2013 in the prior proceedings.

27. He was the Chairman of the Association for about 16 and a half years until he was purportedly removed by the first defendant when he got himself elected in 2010. He challenged the legality of the first defendant’s election in the prior proceedings.

28. With the present membership of the Association at 117, the quorum for purposes of the AGM should have been 68.95% of 117 members, ie., about 81 members. Annexure C of Exhibit A is a true copy of the final list of registered ILGs that was to be used at the AGM on 30 May 2014.

29. While pursuing the prior proceedings, on 26 October 2011, he obtained from Thompson, AJ interim orders allowing him to chair the Association and administer its affairs with limited financial transactions up to K10,000.00 and restrained the defendants representing themselves as the Management Committee of the Association from conducting affairs of the Association until the determination of those proceedings. Annexure D of Exhibit A is a true copy of the sealed order.

30. The prior proceedings proceeded to trial. On 13 February 2013, Kariko, J delivered his decision and made the following orders:

31. As a result of Kariko, J’s decision, the Court on 22 February 2013 lifted the restriction placed on the Association’s bank account. Annexure F of Exhibit A is a true copy of the sealed order.

32. As per the orders of 13 February 2013, the parties and the Court took steps to ensure that members were registered before attending the AGM to cast their votes. This was necessary to ensure that an ILG member could only have one vote and not two and prevent a situation where votes could exceed 117.

33. Asked in cross-examination by Mr Alua for the first and second defendants whether Kariko, J had recognised 117 ILGs as members of the Association, the witness said yes. Asked in cross-examination by Mr Alua whether Kariko, J had determined the quorum due to the increase in membership, the witness said no.

34. The Association applied for funds from the government following the signing of the LBBSA at Kokopo for the construction of a road from Waro (Kutubu) to Fagomaiyo (Mt. Bosavi) to be funded by the government. The first instalment payment of K10.5 million was paid around March 2012, but due to restraining orders issued in the prior proceedings, all funds were frozen in the Association’s account.

35. The first defendant issued contempt of court proceedings against him for not involving him as a member of the Management Committee to run the affairs of the Association. The contempt proceedings were discharged in his favour on 26 October 2012. Annexure E of Exhibit A is a true copy of the sealed order. That order perfected the uncertainty and restrained the first defendant and his office bearers from holding office.

36. The Association accessed funds in its BSP Bank account and commenced construction of a road from Waro (Kutubu) to Fagomaiyo (Mt. Bosavi). The first defendant was aggrieved by that and laid a complaint with the police. This led to the first plaintiff and the Interim Treasurer, Peter Heno being charged for misappropriation which was contested.

38. The court-ordered AGM which was ordered to be convened no later than 20 April 2013 was not held upon obtaining a variation to hold it no later than 10 August 2013 by an order of the court on 23 April 2013. Annexure G of Exhibit A is a true copy of the sealed order. One of the orders made (No.4) was that the Interim Management Committee was directed to submit the final list of the 117 ILGs and the names of each ILG Chairmen or nominees of each ILG who would attend the court- ordered AGM and cast votes to the Electoral Commission Officer who was to conduct the election of office bearers of the Association and the first defendant through his lawyers.

39. The AGM was scheduled to be convened on 8 August 2013, but was vacated due to prevalent violence.

40. On 28 September 2013, the Court ordered the AGM to be held on 29 November 2013.

41. On 29 November 2013, his group with 59 votes secured and the first defendant with 58 votes secured attended the AGM. Before the third defendant could conduct the elections, the first defendant raised certain objections concerning 7 registered ILG Chairmen so the third defendant adjourned the proceedings indefinitely for the Court to make a ruling on the objections. He did not push for the elections to proceed, but accepted the third defendant’s decision to adjourn. Annexure H of Exhibit A is a true copy of the minutes of those proceedings.

42. On 8 May 2014, the Court rejected the third defendant’s objections as being misconceived and ordered that the AGM be held on 30 May 2014. Annexure I of Exhibit A is a true copy of the judgment of the Court.

43. Notice of the AGM to be held on 30 May 2014 with details of the venue and time and invitations of guests to attend and witness the elections and for the Electoral Commission to conduct the elections were given.

44. On 15 May 2014, the first defendant filed an Application for Leave to Appeal to challenge the decision made in the prior proceedings concerning the AGM and the application was heard on 22 May 2014. On 27 May 2014, the Supreme Court refused to grant leave and directed the parties to proceed to the election of office bearers.

45. A number of registered ILG Chairmen were harassed and intimidated by agents, servants or supporters of the defendants to join or remain in the defendants’ group days before the AGM.

46. As OSL refused his group permission to land at Moro, on 29 May 2014, his group comprising 59 members who had camped in Port Moresby took a private charter to Mt. Hagen and travelled for about 8 hours by road to Moro arriving late that night.

47. Reports received were that 3 ILG Chairman had been taken against their will by the defendants’ supporters to join the defendants’ camp and one of the ILG Chairmen in his group, Keith Puara had crossed over to the first defendant’s group. His group lodged a complaint with the police about these suspicious and unlawful incidents as they would definitely affect the outcome of the elections scheduled to be convened the next day.

48. Prior to the AGM, in a security briefing, police met with all parties separately and it was agreed that:

49. At the East Gate there is a metal barricade while the West Gate was not separated by any fence.

50. On the date of the meeting, his group proceeded to the meeting venue after passing through the OSL gate at about 9:50 am. The first defendant’s group was already there and had taken their seats. While seated inside and before he could officially open the meeting, a white tinted Nissan Patrol from the first defendant’s camp was driven past the police at the Sawmill Gate with tyres screeching and made a “U” turn at the gate of the meeting venue. Another vehicle was also driven by and did the same. As police focused their attention on the vehicles at the gate and while sorting out which persons should be at the meeting, a scuffle broke out at the rear of the venue between supporters of the plaintiffs and the first and second defendants.

51. Everyone became violent and started exchanging angry words, some exchanged fists and others equipped themselves with sticks and broke posts and pillars used to support the canvas house and used them to attack each other. During the fracas, he was hit by one of the opposition’s ILG Chairmen with a stick and he saw some members rushing towards him so he was rescued by his supporters and policemen, got him out of the meeting venue and rushed to the safety of the Moro Police Station after which he was taken to a safe location. His supporters exited the meeting venue through Gates 1, 2 and 3 and confronted the defendants’ supporters including those who had come in the vehicles and stones and sticks were thrown at each other. The police were outnumbered, but somehow managed to stop the fight before it got worse and supporters retreated to their respective camps. His officers and members left the meeting venue due to the tense situation and for their own safety and later met at their camp. The defendants’ supporters were the ones who provoked the plaintiff’s supporters to fight both outside and inside the meeting venue.

52. The returning officer called his group to return or send a delegate to provide an explanation why his group could not attend the AGM after the fight. He then asked his lawyer, Public Officer and Executive Officer to inform the returning officer that he was not willing to expose his registered ILG men to another risk of a fight because the fight happened so fast and he was attacked. His position was conveyed by his Executive Officer.

53. As security arrangements made by the police for that day were breached, he felt unsecure to return to the meeting venue. He did not intentionally do it to avoid compliance with Court orders.

54. When it was put to the witness that there was no reason for the first and second defendants’ camp to instigate a commotion as they had already secured 59 registered ILG members and he was lying, he said he did not return for security reasons. The first defendant argued that under Clause 9.5 of the Constitution, 40 ILG Chairmen present at a meeting constituted a quorum and his 59 members present met the requirement so the AGM had to proceed in the absence of the Interim Committee including himself as Chairman and the other 58 ILG Chairmen.

55. Officers of the Electoral Commission informed his delegate and the defendants’ supporters that given the absence of his group after the fight, the situation on the ground was so tense and not conducive for the elections to be conducted and to be fair, the meeting would be vacated and the Court be asked to appoint a different venue and date to hold the AGM. His delegate left thereafter.

56. After 2 hours, he recalled receiving a telephone call informing him that; the Electoral Commission had rescinded its earlier decision to vacate the AGM as the first defendant had threatened to have them charged for contempt of court for not complying with the Court orders to conduct the elections; the Electoral Commission was satisfied that there was a quorum constituted by 59 members present and the first defendant was elected as chairman of the meeting; and the Electoral Commission had conducted the elections for the positions of Chairman, Deputy Chairman, Treasurer and Public Officer when the first defendant and the second defendants were each elected to their respective posts each with 59 votes against none for opposing nominees who were the plaintiffs.

57. The Electoral Commission delayed the declaration of the results pending clarification from the Court as to the legality of the election. On 4 June 2014, the third defendant made the declarations of the results of the election on 30 May 2014 when the Interim Management Committee represented by the second plaintiffs and himself were unseated and the defendants declared as the duly elected members of the Management Committee of the Association. Annexure L of Exhibit A is a true copy of the declaration made by the third defendant dated 4 June 2014.

58. His lawyer, Edward M. Waifaf wrote to the Electoral Commission on 4 June 2014 and advised that the election of the defendants to as office bearers was null and void given the prevailing circumstances under which it was conducted and there was no quorum. Annexure J of Exhibit A is a true copy of the letter.

59. The results of the election were reported in both The National and Post Courier on 5 June 2014. Annexure K of Exhibit A are true copies of the newspaper reports.

60. He is from Hedinia and is the registered ILG Chairman of Eketare Sanemahia and member of the Interim Management Committee as Interim Treasurer appointed by an order of the Court on 13 February 2013.

61. On 30 May 2014, when their group arrived at the meeting venue at the premises of the Association at Moro between 09:00 and 10:00 am, the first defendant’s group was already inside and seated. He and the first plaintiff had already heard that the first defendant had already mustered 59 members and they had 58 members as a result of an ILG Chairman namely, Keith Puara from their group defecting to the first defendant’s group before the meeting. His group took issue with Mr Puara’s defection.

62. Before the AGM was to be formally opened, there was a scuffle and members became aggressive and fought so in the midst of violence, the first plaintiff’s supporters vacated the meeting venue.

63. During cross-examination, Mr Alua for the first and second defendants suggested to the witness that the commotion started inside the meeting venue because one of their members had gone over to the first defendant’s group seated about 10 to 15 metres away from their group and grabbed one of their members namely Joe Sosoro and tried to drag him over to join their group and the witness said he did not notice that. The witness said a commotion had already started among supporters of the two opposing factions outside the meeting venue due to the arrival outside the meeting venue of two vehicles, one a Nissan Patrol and another a white 10 seater, both owned by the first defendant’s group and driven by his supporters, so it distracted his attention and he tried to flee the meeting venue in fear of his life as police were not able to stop the vehicles. Asked further in cross-examination by Mr Alua why the first defendant would want to disturb the meeting from proceeding when he had the numbers, the witness said he had no idea. The election was frustrated and the situation tense.

64. After normalcy returned, his group did not return to the meeting venue despite being asked to do so for security reasons.

65. Kariko, J did not fix a quorum for the court ordered AGM to be conducted with 117 members.

66. The meeting proceeded without a lawful quorum, hence the election of the first and second defendant was unlawful.

67. Some ILG Chairmen even were forced to cast votes in favour of the first and second defendants.

68. The Constitution of the Association recognises 58 ILGs as members of the Association at incorporation out of which the first and second defendants had 30 members while their group had 28: see annexure A to Exhibit D. The quorum is prescribed by Clause 9.5 of the NLA Constitution. There was no quorum as a result.

69. With the increase in membership to 117, the AGM had no quorum. The quorum required would be 81 members or 75% of the total membership by analogy to the ratio used under Clause 9.5 of the Constitution. The first and second defendants only had 59 members present.

70. The Constitution of the Association was not amended to vary the quorum to correspond with the increase in membership to 117.

71. The first defendant is the Chairman of Makaruaporo ILG, a land group adopted in the year 2000 and not one of the original members listed at Clause 2(a) of the Constitution of the Association. He would lack standing to hold office in that regard.

72. The first plaintiff is the Chairman of Badi Sanemiah which is one of the original ILG members. Hence, he has standing to hold office.

74. The third defendant declared him as the duly elected Chairman of the Association with three other members of the Management Committee of the Association on 4 June 2014 at the Electoral Commission’s office in Port Moresby.

75. Since the declarations, he has taken charge of the affairs of the Association. The Management Committee’s first meeting was conducted on 6 June 2014 at the Business Centre, Crown Plaza, Port Moresby. Annexure A of Exhibit 1 is a true copy of the minutes of that meeting.

76. He directed the Public Officer/Secretary elect, namely, Sakai Kei to effect changes to the Records of the Association at the Investment Promotion Authority to reflect the changes that were made to the office bearers of the Association.

77. He was in the process of temporarily closing the Association’s current account No.1000145503 as it was the subject of police investigations concerning the alleged misappropriation of K10.5 million of the Infrastructure Development Grant (IDG). The first plaintiff and the former Interim Treasurer, Peter Heno were on 25 March 2014 committed by the Waigani District Court to stand trial in the National Court on a count of dishonest application of K10,500,000.00 which was subject to a trust (Kutubu Petroleum Development License 2 Benefit Sharing Agreement) to their own use. Annexure B of Exhibit 1 is a true copy of the decision of the District Court.

79. The Chairman of the Association is automatically the Chairman of the landowner company namely, Petroleum Resources Kutubu Limited. They have yet to see any tangible benefits from Petroleum Resources Kutubu Limited, Pacific Property Trust, Pearl Resort in Fiji and Hevi Lift over the last 12 years. The only good investment for them has been the acquisition of 10% of the shares in BSP through Petroleum Resources Kutubu Limited.

80. After the Court on 8 May 2014 ordered that fresh elections be held on 30 May 2014, the plaintiff immediately brought 59 ILG Chairmen to camp in Port Moresby.

81. He sent Sakai Kei, the newly elected Public Officer to Moro, Lake Kutubu to help Donald Wasai and Ronnie Mutu to arrange for their 58 ILG Chairmen to gather at Hegigo Lodge, Moro to prepare for the election on 30 May 2014 and they did.

82. Two of his ILG Chairmen were bribed and kidnapped by the plaintiffs’ supporters and told to leave their villages and hide in the jungle. As a result, a search party was organised to rescue them. They were found hiding in the jungle with the plaintiffs’ supporters and brought back to his camp at Hegigo Lodge, Moro during the night. Police were present doing their normal police duties.

83. On 29 May 2014, Mr Keith Puara, Chairman of Fana Kuhu ILG made his own arrangements and travelled to Moro and freely joined his camp. Mr Puara’s arrival boosted the number of ILG Chairmen in his camp to 59.

84. On the evening of 29 May 2014, he issued his ILG Chairmen including Mr Puara identification cards.

85. On the morning of 30 May 2014, his faction comprising 59 ILG Chairmen proceeded to the meeting venue constructed at the premises of the Association’s office with their Association issued identification cards. The first plaintiff’s faction was nowhere in sight when they arrived. After waiting around for sometime, permission was sought from the security personnel manning the gate and they went inside the meeting venue at around 10:00 am. They sat on one side of the meeting area.

86. After sometime, the first plaintiff and his faction arrived. Instead of entering the meeting venue with their identification cards on them, they stood outside and were shouting insults directed at his group. They insisted that before they could enter the meeting venue, they wanted Keith Puara, the Chairman of Fana Kuhu ILG to go outside and join their group otherwise there would be no meeting. He told them that Keith Puara was a leader in his own right and made a decision to join his group and no one had any right to control him or dictate to him as to which camp he should join or who to vote for. He also told them that Keith Puara would address the meeting on the position he had taken so there was no need to make an issue out of his decision to join his faction and to derail the court-ordered meeting which would be in contempt of the Court’s orders.

87. After discussions between the parties, lawyers and the OIC security personnel, the first plaintiff’s lawyer advised that the first plaintiff and his ILG Chairmen would enter the meeting venue.

88. However, before they did, the first plaintiff’s lawyer wanted to confirm the ILG Chairmen in his faction so with the assistance of two Electoral Commission officials, he checked all the ILG Chairmen in his faction including himself.

89. After that, the two Electoral Commission officials and the lawyers checked the ILG Chairmen from the first plaintiff’s faction. Most of them did not display their identification cards.

90. An ILG Chairman from the first plaintiff’s faction then walked past the line of security personnel separating the two factions and unsuccessfully tried to pull an ILG Chairman from his faction over to his faction.

91. Noticing the failed attempt to forcefully drag that ILG Chairman across to their faction, other ILG Chairmen from the plaintiff’s faction started tearing down the makeshift canvas shelter. He stood in the front and appealed to the ILG Chairmen not to take up arms against each other. The police personnel did a tremendous job in containing the violence purposely perpetrated by the first plaintiff’s ILG Chairmen to frustrate the AGM.

92. When Mr Mambei for Peter Heno suggested to the witness in cross-examination that two vehicles were driven to the meeting venue so security was not guaranteed, he said this was because there was noise coming from the meeting venue, but in any event, there were no security concerns as police had guaranteed that. He did not authorise the vehicles to be driven there.

93. The first plaintiff’s faction walked out of the meeting venue saying the situation did not warrant an orderly election to be conducted. His faction remained in the meeting venue. The first plaintiff and his lawyer left the meeting earlier by jumping over the fence into the Moro Police Station yard.

94. After about 20 minutes or so, members of the Interim Management Committee comprising Alex Narobe, Roy Faso and Emma Atakaro representing the first plaintiff and his faction returned to the meeting venue to inform officials that they were boycotting the election. The Electoral Commission lawyer specifically asked Mr Narobe why they wanted the election deferred and he gave two reasons; first, the security situation was not conducive to holding the election; and second, that Mr Puara had defected to the first defendant’s faction at the eleventh hour. He asked Mr Puara to state his position to the first plaintiff’s emissaries and Mr Puara said as a landowner leader, he had the right to make decisions for his ILG and therefore no one had any right to control him.

95. The Police Station Commander of Moro Police Station addressed the ILG Chairmen that the policemen personnel were doing a marvellous job and it was an insult to them for the first plaintiff and his faction to say that there was a security issue. He said there was no security issue so the AGM should be convened as ordered by the Court.

96. The lawyer for the Electoral Commission after consulting the third defendant said he would allow the first plaintiff’s faction at least an hour to return to the meeting venue and if they did not, he would advice the third defendant to proceed with the AGM in their absence.

97. When the first plaintiff and his faction did not return, the Electoral Commission’s lawyer said the situation did not warrant the holding of the AGM so the AGM be abandoned and he would report back to the Court about the situation.

98. He then addressed the gathering and said that the Constitution of the Association provided that when the Chairman was not present in an AGM at the time appointed, the meeting should go ahead in his absence. He also said that Kariko, J wanted a finality to the proceedings and any dispute arising should be taken up in new court proceedings.

99. After consulting the third defendant, the Electoral Commission’s lawyer reconsidered his stand and advised that the AGM would proceed in accordance with the Constitution of the Association, but no declaration would be made until ratified by the Court.

100. The ILG Chairmen present then agreed to invoke Clause 9.6 of the Constitution of the Association and the Chairman of Yafearaka ILG namely, Sakai Kei nominated him to be the chairman of the meeting which he accepted. He declared the meeting open and handed over the proceedings to the third defendant. They also proceeded with the meeting on the basis that there was a simple majority of members present, i.e., 59 ILG Chairmen including himself.

101. After the election process was completed, the third defendant, in the presence of his lawyer, the security personnel and all those who had gathered there, said he would make the formal declarations after seeking advice.

102. He and the second defendants were declared as duly elected office bearers of the Association at the Electoral Commission Headquarters at Hohola, National Capital District.

103. Asked in cross-examination by Mr Waifaf whether minutes of the proceedings of 30 May 2014 had been filed in Court, he said no. When asked by Mr Alua during re-examination as to whose responsibility it was to take the minutes of the meeting, he said it was the Electoral Commission and it was to report the outcome of the AGM and the election to the Court.

104. The results of the elections would be no different even if the first plaintiff and his faction were present.

105. An interim injunction was obtained by the plaintiffs on 19 September 2014 restraining the first and second defendants from convening a Special Annual General Meeting for the Association scheduled for 19 September 2014 or any other AGM of the Association pending the determination of the substantive proceedings. The interim injunction was made returnable on 22 September 2014 at 09:30 am. Annexure B of Exhibit 2 is a true copy of the order. The Special Annual General Meeting that was intended to be injuncted took place and was completed prior to or around the time the injunction was granted. Annexure A of Exhibit 2 is a true copy of the minutes of that meeting. By resolution number 2, it was resolved that the quorum for the Association’s AGM would be 59 or more. The interim injunction has greatly impacted on the duties of the Management Committee and the decision-making process of the Association and does not serve any real purpose.
Edward Aupong

106. He is the Police Station Commander of Moro, Lake Kutuku, Southern Highlands Province. He has been attached there since 2002.

107. He is responsible for all police activities in the Kutubu District and also responsible for police matters at the project site operated by Oil Search (PNG) Limited.

108. He was in charge of the operation code named Papa Giraun Lida, an operation order initiated by himself and assisted by Senior Inspector John Midi, Commander of Mobile Squad 14 who was engaged in Oil Search operations, to oversee events leading up to and after the election of the Association’s office bearers ordered by the Court to take place on 30 May 2014.

109. The operation order Papa Giraun Lida was also coordinated by Senior Inspector Midi and himself and it was conducted in three phases; first, before the election from 29 May 2014 to 29 May 2014; second, on 30 May 2014; and third, on 31 May 2014 to 6 June 2014.

110. When it was suggested to the witness in cross-examination by Mr Waifaf that all flights and movement of vehicles in and out of Moro on 30 May 2014 were stopped or restricted, he agreed. However, when pressed about the matter during cross-examination, he said he was unsure as he was with his men at the meeting venue. He said the meeting venue was a restricted area.

111. On 30 May 2014 at 05:00 am, they had men stationed at all locations within Moro leading to the Association’s office being the meeting venue. At about 07:00 am, members of the interim executive of the Association namely, Emma Atakaro, Roy Faso and Alex Narobe led by the first plaintiff went to the police station and saw him about Keith Puara’s defection to the first defendant’s camp at the eleventh hour. They sought his assistance to bring Mr Puara back to their camp, but he refused.

112. They also raised an allegation of police involvement in forcing an ILG Chairman in the first plaintiff’s camp to defect to the first defendant’s camp on the evening of 29 May 2014, but was not registered as a complaint.

113. Police personnel were stationed at respective stations including the election venue when the first defendant’s group arrived at about 09:30 am.

114. At about 09:35 am, the first defendant approached him and asked if his group could go enter the meeting venue, but was told to wait for the other group before they could all be checked and be allowed to enter.

115. The first defendant approached him the second time to let his group in as the Court had ordered that the meeting be held at 10:00 am. He was not provided with the Court orders to act on therefore allowed the first defendant’s group to enter the meeting venue at about 09:55 am upon presentation of identification cards.

116. The first plaintiff and his group arrived at the front of the meeting venue at about 10:20 am. Upon noticing that the first defendant’s group had already entered the meeting venue, the first plaintiff requested insistently that the first defendant’s group or Mr Puara should go out before they entered to participate in the election. The situation remained tense for some time while discussions were taking place between lawyers for the parties and his men to find a way forward. The first plaintiff through his lawyer finally agreed for him and his group to enter the meeting venue on the condition that the first defendant’s group be counted and cross-checked again with identification cards which was done and they entered at about 11:30 am.

117. His men were posted around the meeting venue inside and between the two factions who were seated on each side. The meeting venue was a makeshift canvas structure. He also got reinforcement of extra ten policemen from Poroma stationed outside the gate with their vehicle. A total of 30 police personnel were involved and the gate to the meeting venue was manned by the Mobile Squad. The total police manpower at Moro at the time was 91, but many were not involved in operation order Papa Giraun Lida.

118. A commotion started when an ILG Chairman from the first plaintiff’s faction crossed over to the first defendant’s faction in an attempt to drag an ILG Chairman to his side, but that particular Chairman refused to move. The commotion then spilled over to the outside. Policemen were in between both groups and assisted in quelling the situation after about 30 minutes. None of the members from both factions sustained any injury. People were shouting, breaking sticks and acting in threatening manner. The makeshift canvas structure was not pulled down. During the commotion, the first plaintiff’s faction left the meeting venue leaving the first defendant’s faction at the venue.

119. When it was suggested to the witness during cross-examination that two vehicles driven from the direction of the first defendant’s supporters’ area to the meeting venue had breached security resulting in a commotion flaring up outside, he said he was not aware of that as he was inside the meeting venue. He did not conduct an investigation on that as he was not aware that there was such an incident. His men outside the meeting venue were there to deal with incidents affecting security outside.

120. Mr Narobe and a few other men returned a while later and talked with the Electoral Commission officials and their lawyer and left on the understanding that they were boycotting the election.

121. Later, the first defendant spoke with the Returning Officer and his lawyer and requested that the elections be conducted in compliance with the Court orders as they would be in contempt of court if they did not. He also said that there was a quorum by simple majority to proceed with the elections given the presence of 59 of the 117 ILG Chairmen at the meeting.

122. Questions regarding security were raised by the Electoral Commission’s lawyer, but he rejected them as nothing happened on the two earlier occasions. There was no serious security concern or real threat to anyone emanating from the commotion. Given his commitment and undertaking, the Electoral Commission officials proceeded to conduct the elections of the officer bearers of the Association.

123. His men performed professionally to the best of their abilities to execute operation order Papa Giraun Lida and therefore should not be accused of being biased. They did not commit any malicious acts to tarnish the image of the Constabulary.

124. He is a policeman and holds the rank of Senior Sergeant. He is the Officer in Charge of the Criminal Investigation Division at Moro Police Station, Lake Kutubu, Southern Highlands. He has been in the Police Force for 16 years and in OIC, CID for 3 years.

125. He was amongst a group of policemen and woman who were tasked by the contingent Commander, Inspector Edward Aupong to provide security and to ensure that everything went smoothly and that no violence and or trouble was caused among ILG Chairmen and or their supporters during the Association’s AGM. Inspector Aupong was in charge of security operations.

126. On 30 May 2014, he was stationed inside the meeting venue which was a makeshift canvas structure. All gates into the meeting venue were manned. He could observe happenings outside from where he was stationed despite decorations having been put up. The meeting venue was about 20 metres from the road. Entrance points to the meeting venue were blocked off. His observation was that unlike the first plaintiff and his ILG Chairmen, the first defendant and his ILG Chairmen were more orderly and organized right from the time they entered the meeting venue up until the meeting ended at around 02:00 pm that day.

127. As the first defendant and his group had gone in early, they were told to wait at the gate of the meeting venue and were only allowed in at the appointed time of 10:00 am. When they went in, they all sat quietly on one side of the meeting area adjacent to the Association’s office.

128. The first plaintiff and his ILG Chairmen arrived late and entered the meeting venue from the eastern end. They were there before the Electoral Commission officials arrived. Before the first plaintiff and his group went in, an ILG Chairman namely, Alex Narobe started making accusations against the first defendant and his group and the first plaintiff and the other ILG Chairmen in his group joined in later and did likewise.

129. He clearly heard Mr Narobe insisting that they would not enter the meeting venue unless and take part in the proceedings if the first defendant and his group did not release to them their supporter, an ILG Chairman namely Keith Puara who defected to their camp. The first defendant responded by saying that Mr Puara defected to his group on his own accord and it was up to him to decide who to support.

130. The war of words and accusations went on for about one hour and during that time, the lawyers, security personnel and Electoral Commission officials engaged in discussion to find a way forward. The first plaintiff’s lawyer finally agreed to allow the first plaintiff and his group to enter the meeting venue and they did after their names were called by the Electoral Commission officials and they sat at the opposite of the meeting venue adjacent to the Moro Police Station.

131. Once inside, Mr Narobe and some other ILG Chairmen disturbed the proceedings by attempting to drag an ILG Chairman from the first defendant’s group across to their group, but the person refused to move over.

132. Noticing that their attempt failed, Mr Narobe and some other ILG Chairmen tore down the canvas roofing of the makeshift shelter constructed as the meeting venue and started a commotion with the intention of disrupting the meeting. The meeting was indeed disrupted for some time, but the defendants did well to contain the situation.

133. Asked in cross-examination whether there was a commotion outside the meeting venue which started as a result of two vehicles, a Nissan Patrol and a white 10 seater being driven to the gate of the meeting venue at high speed, the witness said the commotion started inside the meeting venue so he did not know what happened outside. He never enquired about those vehicles as no injuries were sustained. Police vehicles and policemen were on the road. There were enough police personnel on the ground providing security. When it was put to the witness by Mr Waifaf in cross-examination that movement of vehicles was restricted, but the two vehicles breached police barricades to drive to the meeting venue, he said he did not see them. When he was pressed by Mr Waifaf whether he had heard the vehicles being driven there if he did not see them, he evaded answering the question and repeated that he did not see them. In re-examination by Mr Alua, he said he did not hear the vehicles outside as there was a lot of noise inside the meeting venue.

134. Asked in cross-examination by Mr Waifaf whether he was engaged to provide security in the previous two elections the witness said yes. When it was put to the witness that those elections were not conducted due to fighting by supporters of the opposing factions, he said yes.

135. The first plaintiff and his ILG Chairmen and his lawyer left the meeting venue and did not return. Sometime later, Mr Narobe and four or five ILG Chairmen and the first plaintiff’s lawyer returned to the meeting venue to say that given the situation was tense, they would not return to take part in the proceedings and left.

136. Asked in cross-examination by Mr Mambei counsel for Peter Heno about how serious was the disturbance, the witness said it was not really serious as nobody was injured. Pressed to answer whether people lost lives or got injured during the commotion involving the two vehicles that had been driven to the meeting venue, the witness said yes and later said he was unsure.
137. The first plaintiff and his ILG Chairmen were the ones who instigated the commotion inside the meeting venue.

138. When the first plaintiff and ILG Chairmen in his group did not return to the meeting venue, the Electoral Commission decided to proceed with the election in their absence.

139. Before conducting the election, he heard the first defendant informing the third defendant this was court ordered election and all parties including the Returning officer were required to comply with the Court order and conduct the election otherwise they would be in contempt of court. The first defendant also pointed out that there was a quorum to proceed with the election as 59 ILGs were represented by those present.

140. After being satisfied that there was a quorum, the Returning Officer conducted the election with the assistance of his lawyer.

141. When Mr Mambei suggested to him that the other witnesses were not the truth, he said he was telling the truth.

142. He is currently employed as the Senior Programme Manager with the Electoral Commission of Papua New Guinea at the headquarters. He has been in the employ of the Electoral Commission for over 40 years since 1976.

143. He was appointed by the Electoral Commission as the Returning Officer to conduct the election of the office bearers of the Association. This was the third attempt he was involved in to conduct the election of the office bearers of the Association. The second attempt was on 29 November 2013.

144. On 8 May 2014, the Court in the prior proceedings made orders for the Association to convene its AGM on 30 May 2014 and for the Electoral Commission to conduct the elections of the office bearers of the Association.

145. On 30 May 2014, he was at the appointed meeting venue which was in front of the Association’s Office at Moro, Kutubu, Southern Highlands Province with the lawyer for the Electoral Commission namely, Kevin Kepo, two other officers from the Electoral Commission namely, George Karukuru and Ben Duana and an officer from the Mineral Resources Development Company.

146. When they arrived, they sat at the front. The first defendant and the ILG Chairmen in his camp whose names were on the list submitted to his office by the Interim Management Committee of the Association headed by the first plaintiff and who were eligible to vote were waiting inside the meeting venue. They sat together on one side while waiting for the first plaintiff and his group of ILG Chairmen to come into the meeting venue as they remained outside the meeting venue and were making some accusations directed at the first defendant’s group inside about an ILG Chairman leaving their camp to join the first defendant’s camp. Kevin Kepo and the two officers from the Electoral Commission did a headcount and confirmed that there were 59 ILG Chairmen in the first defendant’s camp.

147. After about an hour or so, Mr Kepo walked out of the meeting venue and after speaking to the first plaintiff’s lawyer namely, Mr Waifaf, he agreed to bring the first plaintiff and all the ILG Chairmen in his camp totalling 58 into the meeting venue and they did after their names were called and sat on the other side of the meeting venue.

148. They conducted another headcount of the ILG Chairmen present who were eligible to vote and it was done according to the list of ILG Chairmen which had facial images of each person listed and cross-checked with their identification cards. This was to ensure that persons present were proper persons for that purpose and arrived at a total of 117. That meant that, all the ILG Chairmen who were eligible and registered by the Interim Management Committee to vote at the AGM were in attendance at the meeting venue. The headcount also confirmed that the first plaintiff had 58 ILG Chairmen in his faction and the first defendant had 59 ILG Chairmen in his camp.

149. However, before anything constructive could ensue, an ILG Chairman from the first plaintiff’s walked past a line of the police personnel segregating the two groups and tried to drag an ILG Chairman in the first defendant’s camp to the first plaintiff’s camp. That Chairman refused to move. After seeing that their scheme did not work, other ILG Chairmen in the first plaintiff’s camp insisted that that particular Chairman cross the floor, but he refused to move and remained with the first defendant’s group.

150. Noticing that their attempts to forcefully take away that particular ILG Chairman failed, the ILGs Chairmen in the first plaintiff’s camp started tearing down the makeshift canvas shelter and started a commotion. They all stood back and witnessed what was unfolding before them. The first defendant stood in the front and appealed to the ILG Chairmen not to take up arms against each other. Asked in cross-examination about the commotion outside the meeting venue involving two vehicles, he said they were under the protection of the police, but the violence was similar to the disturbance that took place on 29 November 2013. The police personnel who were present did a tremendous job in containing the violence purposely perpetrated by the ILG Chairmen in the first plaintiff’s camp to frustrate the convening of the AGM.

151. After a good 20 minutes, the situation cooled down and while all the ILG Chairmen in the first defendant’s camp remained in the meeting venue, the first plaintiff’s group walked out of the meeting area saying the situation, which they purposely created, was not conducive to holding a smooth and effective election. The first plaintiff and his lawyer had already left the meeting venue by then.

152. Some 10 minutes later, some members of the first plaintiff’s Interim Management Committee returned to the meeting venue to inform him and his officials that they were boycotting the election. Mr. Alex Narobe spoke on behalf of the first plaintiff. He said the security situation they had created was not conducive to continuing with the elections. However, the main reason was the defection of one ILG Chairman to the first defendant’s camp. That ILG Chairman was then given the opportunity to speak and he told them in the eyes of the first plaintiff’s emissaries that as a landowner leader, he had the right to make decisions for his ILG and therefore no one had any right to control him.

153. The Police Station Commander of Moro Police Station namely, Chief Inspector Edward Aupong then addressed the ILG Chairmen. He said the police personnel were doing a marvellous job and it was an insult to them for the plaintiffs to say that there was a security problem. He said he did not see any real problem and the AGM should be held and completed as ordered by the Court.

154. He and his lawyer then advised that they should give the first plaintiff’s group at least an hour to return to the meeting venue and if they did not, they would proceed with the AGM. That information was conveyed to the first plaintiff’s lawyer by his lawyer, Mr Kepo.

155. They waited for about an hour and at about 02:15 pm when the first plaintiff, his group and their lawyer did not return to the meeting venue, his lawyer informed the first defendant with his ILG Chairmen that the situation did not warrant the continuation of the AGM, it be abandoned and they would report back to the Court. The first defendant then said that the directions by Kariko, J were very clear in that His Honour wanted the matter to be brought to finality and any dispute arising should be taken up in new court proceedings.

156. His lawyer then reconsidered their earlier position after consulting him and informed those present including the first defendant and his group that the AGM would proceed in accordance with the Association’s Constitution and no declarations would be made until ratified by the Court. To not conduct the election as ordered by the Court would give rise to possible contempt of court proceedings being brought against him.

157. He then proceeded to conduct the election. Subsequently, the first and second defendants were declared as office bearers of the Association.

158. Asked in cross-examination by Mr Mambei whether he was aware that Kariko, J ordered that all 117 ILG members were to attend the AGM, he said yes.

159. Asked in cross-examination whether he had considered the issue of quorum, he said he was advised by his lawyer that the quorum was 40 and since the ILG members present was 59, there was a quorum to proceed with the AGM and the election of the office bearers of the Association.

160. When he returned to Port Moresby on 1 June 2014, he made a report about the election of the office bearers of the Association in Kutubu and the commotion before the election took place. Annexure A to Exhibit 6 is a true copy of the report. The report shows that before making the decision to proceed with the election, the witness and Mr Kepo had the benefit of reading Clause 9.6 of the Association Constitution. The declarations of the office bearers were done on 4 June 2014. Annexure B to Exhibit 6 is a true copy of the declaration form.

161. The agreed and disputed facts are contained in the Statement of Agreed and Disputed Facts and Legal Issues for Trial (the Statement) endorsed by the parties dated 12 May 2016.

3. Prior to the meeting, the registered members were grouping in two camps namely the John Kapi Natto and Mark Sakai camps respectively with the registered voters supporting each faction.

(a) the first plaintiff and 57 members which is a total of 58 registered members of NLA abstained from the meeting.

POSITION	NOMINEES	VOTES
Chairman	Mark Sakai	59
Chairman	John Kapi Natto	00 (Absent)
Deputy	Donald Wasai	59
Deputy	Emma Atakaro	00 (Absent)
Treasurer	Ronnie Mutu	59
Treasurer	Peter Heno	00 (Absent)
Public Officer	Sakai Kei	59
Public Officer	Roy Faso	00 (Absent)

164. The main legal issues for the Court’s determination are contained in the Statement and these are:

ANALYSIS OF THE ISSUES AND EVIDENCE
Whether the first and second defendants were lawfully elected as office bearers of the Association in an AGM that had a lawful quorum to convene and transact on the election of office bearers of the Association on 30^th May 2014?

165. It was contended that the elections of the first and second defendants as office bearers of the Association on 30 May 2014 and declared as such by the third defendant on 4 June 2014 were unlawful and null and void for non-compliance with the Constitution of the Association as the AGM lacked the necessary quorum.

166. It was argued that for lawful elections to have been conducted, the quorum should have been computed in accordance with the formula or ratio given under Clause 9.5 of the Constitution of the Association where 40 was the quorum out of 58 members which is about 70% of the total membership. In the present case, when applying the formula or ratio, the quorum would be 81 members.

167. In addition, it was argued that the AGM would still fall short of meeting a lawful quorum because if the simple majority rule of 50% plus 1 were applied as was adopted by Injia, CJ in his unreported judgment in OS No.385 of 2014, John Kapi Natto & Ors v Mark Sakai & Ors delivered by Injia, CJ on 23 June 2014 when dealing with an application for an interim injunction in these proceedings, the quorum required would be 60 members of the 117 members ordered by the Court to attend and the first and second defendants fell short by one member.

168. It was submitted that any business transacted at the AGM which lacked a quorum was null and void and therefore not binding. I was referred to Joshua v Meya (1988-89) PNGLR 188, Kawage v Mondu (1999) PNGLR 543, Marika v Silari (2004) PNGLR 239, Namaliu v Haiveta (2004) N2693 and Kuyan v Sallel (2008) N3376. I have considered those cases.

169. Mr Mambei for Mr Heno supported Mr Waifaf’s submissions. In addition, he contended that in the absence of an amendment to the quorum to correspond with the increase in membership of the Association, guidance should be had to Section 22 (Special resolution) of the Associations Incorporation Act and Section 39 (Powers of majority) of the Interpretation Act in determining what the quorum for an association with 117 members should be.

170. Mr Alua contended that the first and second defendants were lawfully elected as office bearers of the Association as there was a quorum to convene the AGM and transact on the election of office bearers on 30 May 2014 as:

171. The third defendant supported the first and second defendants’ submissions. He concurred with the first and second defendants that there was a quorum for the court-ordered AGM to conduct its only business which was the election of the office bearers of the Association conducted by him.

172. The Association was incorporated under the Associations Incorporations Act on 5 July 1994. It has a Constitution which was lodged when the application for the incorporation of the Association was lodged in 1994. The amended constitution registered with the Investment Promotion Authority on 26 July 2010 was declared null and void by the Court on 13 February 2013. The Association’s affairs are conducted or ought to be conducted in accordance with the Constitution and in consonance with the constitutional objectives. At incorporation, there were 58 ILG members. It is not in issue that 59 ILGs have become members of the Association since incorporation and the membership has increased to 117 landgroups.

173. Before I address the issue at hand, I need to address a matter that the parties have not given any attention to. That is the election and appointment of the chairman of the AGM. Clause 9.6 is relevant and it states:

The President shall be Chairman of General Meetings, or if he is not present within 30 minutes after the time fixed for the meeting, such other committee member as the meeting shall elect for that purpose.

174. This was a court-ordered AGM and not an ordinary General Meeting called by the leadership of the Association. The only people who were sanctioned by the Court on 13 February 2013 to organise the election was the Interim Management Committee comprising the first and second plaintiffs. The first defendant was elected to chair the AGM on 30 May 2014. He was not a member of the Interim Management Committee. The conduct of the meeting by the first defendant was flawed as a result and all businesses transacted during the meeting particularly the election of office bearers of the Association was flawed and void ab initio.

175. Notwithstanding the above finding and determination and in case I am wrong in arriving at that conclusion (which I think I am not), I now turn to addressing the issue at hand.

176. Clause 9.5 of the Constitution of the Association is relevant in the determination of this issue. It states:

The quorum at any General Meeting of the General Committee of the Association shall be 40 members entitled to vote and present personally or by proxy. Such quorum shall comprise at least one (1) General Committee member representing each of the landgroups.

177. Had the Court not sanctioned and acknowledged the increase in membership of the Association by 59 ILGs to a total of 117 on or about 23 April 2013, there would be no quorum pursuant to Clause 9.5 as the first defendant only had 30 of the original members in attendance at the AGM on 30 May 2014.

178. The Court however did not lay down the quorum for the AGM when it ordered one to be held and organised by the Interim Management Committee. The Associations Incorporation Regulation has not yet prescribed model rules for associations incorporated so no assistance can be obtained on this question by virtue of Section 15 of the Associations Incorporation Act.

179. As to the suggestion by the plaintiffs that the formula or ratio used in Clause 9.5 of the Constitution of the Association should be applied, I think a quorum based on that would be speculative as it would be entirely up to the Association to determine the appropriate quorum for its 117 membership. There is no evidence or strong evidence before the Court as to the reason why the ratio was adopted at the time of applying for incorporation. The reasons given by the plaintiffs in their submissions have no evidentiary basis.

180. The common sense approach in the circumstances would be to apply the majority principle and in doing so, I would adopt the observations of Injia, CJ in OS No.385 of 2014, John Kapi Natto & Ors v Mark Sakai & Ors at paragraphs 12 to 13 and these are:

“12. ...Unfortunately, the order did not specify the quorum for the AGM that was ordered. In the absence of any provision by Court order for a quorum for the AGM, established principles of law established by this Court that require the usual majority to hold such meeting, the majority, meaning simple majority: Michael Gene v Royale Thompson (2007) N3254, Joshua v Meya [1988-89] PNGLR 188. That is 50% of members plus one, which in this case is 58.5 plus 1 to arrive at 59.5. Apparently member persons cannot be subdivided so I would round up the figure, applying ordinary mathematics principles, to 60. To read into the clause 9.5 of the Constitution and the Court order of April 2013 to require 70% of 117 member ILGs to constitute the quorum for the AGM may border on redrafting those provisions.

13. One important factor is the decision made by the third defendant to proceed with the meeting based on the quorum prescription in 9.5 of the Constitution. This decision is reflected on page 6 of his report annexed to his affidavit. He determined that 59 present exceeded the prescribed quorum of 40. He made no reference to the Court order that fixed the number of member associations at 117 and the required quorum.”
181. Given these, I am satisfied that the first and second defendants were not lawfully elected as office bearers of the Association at the court-ordered AGM of the Association held at Moro, Lake Kutubu on 30^th May 2014 as that AGM lacked a lawful quorum.

Whether the declaration of election results made by the third defendant on 4^th June 2014 is valid?

182. Consequent upon the determination of the first issue against the first and second defendants, it suffices to say that by adopting the reasons given above and applying them here, the declaration made by the third defendant on 4 June 2014 was not valid and null and void.
Whether the plaintiffs can benefit from their unlawful acts and or omissions?

183. The first and second defendants contended that the plaintiffs should not be allowed to benefit from their unlawful acts and or omissions relying on the equitable principle that “he who comes to court must do equity” or “ he who seeks equity must come with clean hands”. It is argued that there is overwhelming evidence before the Court adduced by the defendants’ witnesses that the plaintiffs and their cohorts intentionally engaged in conduct aimed at sabotaging the Court-ordered AGM and with intent to frustrate it from being convened. This can be judged from the following circumstances:

184. It was also argued that evidence has been adduced by the first defendant, particularly annexure B of Exhibit 1, that shows that the first plaintiff and one of the second defendants namely, Peter Heno have been investigated, charged and committed to stand trial in the National Court on charges of fraud and misappropriation involving K10.5 million of public funds meant for infrastructure development in their Kutubu area. This goes to demonstrate their suitability or otherwise to hold positions of authority within the Association and its many trust companies.

185. Support was drawn from the cases of John Mur v Les Kewa (2010) N4016, Peter Pagi v Wilfred Mindili (2009) N3753, Tau Mavara Kamuta v David Sode (2006) N3067 and Gary Maso Paya v Ronald Silovo (2011) N4422. I have considered those cases.

186. It was argued that on the collective weight of these authorities, the evidence demonstrates that the plaintiffs have not come to Court with clean hands to avail themselves of the equitable remedies they seek in the amended originating summons and they are not fit and proper persons to hold responsible positions in the Association and its many trust companies.

187. The third defendant supported the first and second defendants’ submissions and made similar submissions.

188. Counsel for the plaintiffs supported each other in arguing that; the question of quorum was the main issue and its consideration should be the main focus of the Court’s deliberations and the case against the first plaintiff and Peter Heno, a matter brought up was a peripheral issue and the first and second defendants were trying to divert attention from the main issue and in any event that case has been dismissed and is a dead issue that ought not to be resurrected.

189. The defendants’ evidence has been that the commotion was instigated by the plaintiffs as they allegedly lost the crucial support of Mr Puara, one of the ILG Chairmen within their faction until his eleventh-hour defection to the first defendant’s faction on the eve of the Court-ordered AGM. The severity of the commotion has been downplayed by the defendants’ witnesses. They said the tense situation had subsided and the plaintiffs had no excuse at all for not returning to the meeting venue to proceed with the AGM. The defendants’ evidence generally is that the commotion started inside the meeting venue and spilled out to the outside as a result of the plaintiffs’ failed attempt to drag an ILG Chairman from the first defendant’s faction across to their side. None of the defendants’ witnesses in examination in chief said a commotion started outside the meeting venue independent of the one that started inside. It was only during cross-examination of the first defendant that he conceded that two of his vehicles had been driven to the meeting venue without his authority corroborating the plaintiffs’ evidence in that respect. The other witnesses denied that. There is no rule of law that says that where two or more witnesses tell the same story, that story is the truth as opposed to a single witness: The State v Jacob Dogura Roy (2007) N3137. Here the plaintiffs called two witnesses compared to four called by the defendants. My assessment of the evidence and the demeanour of the defendants’ witnesses is that they were not telling the whole truth and evasive. They omitted evidence that could be held against them. On the other hand, the demeanour of the plaintiffs’ witnesses was good and generally not evasive. The first and second defendants did not contest the submission by the plaintiffs that the case against the first plaintiff and Peter Heno has been dismissed. In any event, the question as to whether the first plaintiff and Peter Heno are qualified to hold responsible positions in the Association and its trust companies are not directly related to the primary issue of whether there was a quorum to hold the AGM on 30 May 2014. So on all the evidence before me, I am satisfied on the balance of probabilities, that a commotion also started outside the meeting venue independent of the one that occurred inside the meeting venue instigated by the arrival of two vehicles at the meeting venue.

190. The plaintiffs are not solely to be blamed for their non attendance at the AGM. The tense situation, played down by the defence witnesses particularly by the two policemen, did not warrant their attendance. The degree of blameworthy is immaterial compared to a life or lives lost particularly when dealing with issues relating to customary land and benefits accruing from natural resources extracted from the land. All necessary caution must be taken however small an incident might be viewed as repercussions might turn out to be severe. It is not disputed that two previous Court-ordered AGMs that failed on 8 August 2013 and 29 November 2013 were because of; widespread violence amongst supporters and members (8 August 2013) and; the first defendant objected to certain registered members which the Court later held was baseless and fixed the final meeting on 30^th May 2014 (29 November 2013). The AGM scheduled on 30 May 2014 could likewise have been deferred in the circumstances, but the first defendant’s faction insisted on going ahead with the AGM when they sensed that they had the advantage over the first plaintiff’s faction.

191. The AGM on 30 May 2014 was conducted unlawfully contrary to Clause 9.6 of the Constitution of the Association and without a quorum. The election of office bearers of the Association conducted by the third defendant on 30 May 2014 during the AGM and subsequent declaration made by the third defendant on 4 June 2014 were therefore invalid and null and void.

Judgment and orders accordingly.
_______________________________________________________________
Edward M. Waifaf: Lawyers for the Plaintiffs (except for Peter Heno)
Solwai Lawyers: Lawyers for the Plaintiff, Peter Heno
Elemi Lawyers: Lawyers for the First and Second Defendants
Niugini Legal Practice: Lawyers for the Third Defendant

National Court of Papua New Guinea

Natto v Sakai [2019] PGNC 160; N7866 (9 May 2019)