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Waip v Telikom (PNG) Ltd [2025] PGNC 76; N11231 (4 April 2025)

N11231

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

HRA NO 12 OF 2025

PETER LUSO WAIP
Plaintiff

V

TELIKOM (PNG) LIMITED
Defendant

WAIGANI : CANNINGS J
14, 31 MARCH, 4 APRIL 2025

HUMAN RIGHTS – right to freedom of information, Constitution, s 51 – citizens’ right of reasonable access to “official documents” – access sought to deed of agreement re use of land for telecommunication infrastructure apparently entered into in 1974 between the plaintiff’s clan and the defendant’s predecessor entity.

The plaintiff claimed to be the principal representative of a clan that owned customary land that the defendant allegedly used for many years for its telecommunications infrastructure. He asserted that the defendant owes him and his clan approximately K1 million for use of the land pursuant to a deed of agreement entered into in 1974. He filed an application for enforcement of human rights, in particular his right as a citizen to reasonable access to official documents under s 51 of the Constitution, seeking a court order that the defendant provide him a copy of the 1974 deed of agreement. The defendant seemed to acknowledge that it has a copy of that agreement. However, it opposed the application, arguing amongst other things that it was not an official document and the plaintiff was not a party to the agreement.

Held:

(1) Section 51 gives every citizen other than a citizen who has dual citizenship the right of “reasonable access” to “official documents”, subject only to the need for “such secrecy as is reasonably justifiable in a democratic society” in respect of any of the matters prescribed in s 51(1)(a) to (j) (Mesulam v Joku (2023) SC2499).

(2) The questions that arise in an application under s 51 are: Is the applicant a citizen who does not have dual citizenship of another country? Are the documents sought by the applicant “official documents”? Is there any need for “such secrecy as is reasonably justifiable in a democratic society” due to the documents falling into any of the categories of documents set out in s 51(1)(a) to (j)?

(3) If the first two questions are answered in the affirmative and the third question is answered in the negative, the applicant has the right of reasonable access to the documents.

(4) Here, the applicant is a citizen; the memorandum of agreement is an official document within the possession of a governmental body; and the document does not fall within any of the categories in s 51(1)(a) to (j).

(5) Though the document is 50 years old, and the prospect of the plaintiff being able to use it to advance a claim against the defendant appears bleak, there is no prejudice to the defendant in providing the plaintiff with a copy of it. He had the right of reasonable access to it.

(6) Order made for the defendant to provide the plaintiff with a copy of the 1974 deed of agreement.

Cases cited

Mesulam v Joku (2023) SC2499
Nanage v Telikom (PNG) Ltd (2023) SC2499

Counsel

B Kome for the plaintiff
J Pora for the defendant

1. CANNINGS J: The plaintiff, Peter Luso Waip, claims to be the principal representative of Awin Clan of Lagaip District, Enga Province. He claims that his clan is the owner of customary land at Mt Burgers, which was for many years used by the defendant, Telikom (PNG) Ltd, for a repeater station and other telecommunications infrastructure. He claims that the defendant owes him and his clan approximately K1 million for use of the land pursuant to a deed of agreement entered into in 1974. He says that the deed of agreement is dated 22 September 1974.

2. He has filed an application for enforcement of human rights, in particular his right as a citizen to reasonable access to official documents under s 51 of the Constitution. He seeks a court order that the defendant provide him with a copy of the 1974 deed of agreement entered into between his clan and the defendant’s predecessor entity regarding use of the Mt Burgers land. Apparently he knows about this agreement but does not have a copy of it.

3. The defendant seems to acknowledge that it holds a copy of that agreement. However, it opposes the application, arguing amongst other things that the deed of agreement is not an official document, that the plaintiff was not a party to the agreement and therefore has no standing, and that the document is more than 50 years old and it is unreasonable for the plaintiff to assert any right over access to it. The defendant also argues that the plaintiff has no prospect of succeeding with his ultimate objective of being paid compensation as his claim would be time-barred and the land is no longer customary land as the defendant acquired a State lease over it in 1986.

4. Its lawyer, Ms Pora, pointed out that there have been numerous claims by the plaintiff as well as other persons claiming customary ownership of the land at Mt Burgers and compensation. These claims have been rejected as frivolous and time-barred. One of them was the subject of a Supreme Court appeal, Nanage v Telikom (PNG) Ltd (2023) SC2499, which Telikom succeeded in.

5. The defendant also argues that it has been incorrectly named as there is no longer an entity called Telikom (PNG) Ltd. Its correct name is Telikom Ltd.

NATURE OF APPLICATION

6. I emphasise that this is an application for access to a document. I am not hearing any claim for a declaration as to ownership of land or for compensation. Those remedies seem to be part of the ‘end-game’ for the plaintiff. But they are not issues before me. The question is simply whether the plaintiff has a right of access to the 1974 deed of agreement.

7. The application was filed on 31 January 2025. The defendant filed a notice of intention to defend on 25 February 2025 and on 11 March 2025 filed a “Statement of Response”.

8. The trial commenced on 14 March 2025. Mr Kome of Kome & Co Lawyers appeared for the plaintiff. Ms Pora, who is an employed lawyer of the defendant, appeared for the defendant. Two affidavits of the plaintiff were admitted into evidence for the plaintiff. One affidavit of Ms Pora was admitted into evidence for the defendant. Ms Pora then applied for more time to file an additional affidavit. I upheld the application and allowed both parties until 21 March 2025 to file and serve further affidavits and adjourned the trial to 31 March 2025 at 1.30 pm.

9. However, no further affidavits were filed by either party. When the matter was called on 31 March 2025, only Mr Kome appeared. Ms Pora made no appearance and there was no appearance by any other person for the defendant. I asked Mr Kome if he wished to proceed, and he indicated that he did, so I heard submissions from him and reserved judgment.

SECTION 51 OF THE CONSTITUTION

10. Section 51 (right to freedom of information) states:

(1) Every citizen has the right of reasonable access to official documents, subject only to the need for such secrecy as is reasonably justifiable in a democratic society in respect of—

(a) matters relating to national security, defence or international relations of Papua New Guinea (including Papua New Guinea's relations with the Government of any other country or with any international organization); or

(b) records of meetings and decisions of the National Executive Council and of such executive bodies and elected governmental authorities as are prescribed by Organic Law or Act of the Parliament; or

(c) trade secrets, and privileged or confidential commercial or financial information obtained from a person or body; or

(d) parliamentary papers the subject of parliamentary privilege; or

(e) reports, official registers and memoranda prepared by governmental authorities or authorities established by government, prior to completion; or

(f) papers relating to lawful official activities for investigation and prosecution of crime; or

(g) the prevention, investigation and prosecution of crime; or

(h) the maintenance of personal privacy and security of the person; or

(i) matters contained in or related to reports prepared by, on behalf of or for the use of a governmental authority responsible for the regulation or supervision of financial institutions; or

(j) geological or geophysical information and data concerning wells and ore bodies.

(2) A law that complies with Section 38 (general qualifications on qualified rights) may regulate or restrict the right guaranteed by this section.

(3) Provision shall be made by law to establish procedures by which citizens may obtain ready access to official information.

(4) This section does not authorize—

(a) withholding information or limiting the availability of records to the public except in accordance with its provisions; or

(b) withholding information from the Parliament.

11. Section 51 gives every citizen other than a citizen who has dual citizenship the right of “reasonable access” to “official documents”, subject only to the need for “such secrecy as is reasonably justifiable in a democratic society” in respect of any of the matters prescribed in s 51(1)(a) to (j) (Mesulam v Joku (2023) SC2499).

12. So the questions that arise in an application under s 51 are:

1. Is the applicant a citizen who does not have dual citizenship of another country?
   
2. Are the documents sought by the applicant “official documents”?
   
3. Is there any need for “such secrecy as is reasonably justifiable in a democratic society” due to the documents falling into any of the categories of documents set out in s 51(1)(a) to (j)?
   

13. If the first two questions are answered in the affirmative and the third question is answered in the negative, the applicant has the right of reasonable access to the documents.

THIS CASE

14. First, it is presumed that the applicant is a citizen without dual citizenship. His citizenship status has not been challenged by the defendant.

15. Secondly, as to whether the 1974 deed of agreement is an official document, there is no definition of “official documents” in the Constitution. The words should be given a broad meaning in light of the purpose of s 51, which, I suggest, is to confer an enforceable human right on citizens to facilitate easy access to government documents and promote freedom of information.

16. Though formally it might be established as a corporation under the Companies Act, given its history, the defendant can be regarded as a governmental body performing public functions. Land use agreements it enters into with customary landowners are properly regarded as official documents. The 1974 deed of agreement is an official document within the possession of a governmental body. As to the suggestion that the defendant has been incorrectly described, I am unconcerned about that technical point. No one can be confused by the description provided. The plaintiff is seeking an order against Telikom.

17. Thirdly, the deed of agreement does not seem to fall within any of the categories of documents referred to in s 51(1)(a) to (j). In any event, the onus of proving that a document falls within one or more of the prescribed categories and that there is a need for secrecy in regard to the document rests on the person who is seeking to deny access to the document (Mesulam v Joku (2023) SC2499). The onus has not been discharged.

18. I find that the plaintiff has the right of reasonable access to the 1974 deed of agreement. Indeed, it is reasonable for the applicant to be granted access to it in view of his claim that he is the current principal representative of the clan that apparently entered into the agreement.

19. Though the document is 50 years old, and the prospect of the plaintiff being able to use it to advance a claim against the defendant appears bleak, I cannot see any prejudice to the defendant in providing the plaintiff with a copy of it.

20. I will order that the defendant provide a copy of the document to the plaintiff.

ORDER

1. The application for enforcement of the right of the plaintiff under s 51(1) of the Constitution to reasonable access to an official document, viz the deed of agreement between representatives of the Awin Clan and the defendant’s predecessor entity, entered into in September 1974 re use of land at Mt Burgers, Lagaip District, Enga Province, reasonably believed to be in the custody and control of the defendant, hereafter referred to as the “official document”, is granted.
   
2. The defendant shall by 11 April 2025 file and serve on the plaintiff’s lawyers an affidavit by an authorised representative of the defendant annexing a copy of the official document.
   
3. The matter will return on 22 April 2025 at 1.30 pm for compliance check and to address any remaining issues.

________________________________________________________________
Lawyers for the plaintiff: Kome & Co Lawyers
Lawyer for the defendant: J Pora