SC2747

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 195 OF 2022

KURUBU IPARA in his capacity as Director of PORGERA GOLD MINES LTD representing Porgera Local-level Government Special Purposes Authority
 First Appellant

AND 
PELLY PUNDI in his capacity as Director of PORGERA GOLD MINES LTD 
Second Appellant

AND
AKEN PULUKU as purported Director of PORGERA GOLD MINES LTD representing Porgera Local-level Government Special Purposes Authority
First Respondent

AND
HENRY LARA in his capacity as Director of PORGERA GOLD MINES LTD
Second Respondent

AND
SOLE TARO In his capacity as Director of PORGERA GOLD MINES LTD
Third Respondent

AND

SCA NO. 178 OF 2022

JONATHAN PARAIA as Chairman of PORGERA GOLD MINES LTD
First Appellant 

AND
PELLU PUNDI in his capacity as Director of PORGERA GOLD MINES LTD
Second Appellant
AND
KURUBU IPARA in his capacity as Director of PORGERA GOLD MINES LTD representing Porgera Local-level Government Special Purposes Authority
Third Appellant
AND
AKEN PULUKU as purported Director of PORGERA GOLD MINES LTD representing Porgera Local-level Government Special Purposes Authority
First Respondent

AND
HENRY LARA in his capacity as Director of PORGERA GOLD MINES LIMITED
Second Respondent

AND
SOLE TARO in his capacity as Director of PORGERA GOLD MINES LIMITED
Third Respondent

WAIGANI: MURRAY J, BERRIGAN J, KAUMI J
26 NOVEMBER 2024; 2 JULY 2025

APPEAL – Utility of appeal overtaken by events – Appeal dismissed 

Cases cited
Paraia v Puluku (2022) N10115
Ondalane v Kulara (2022) N9988
Ondalane v Eoe (2024) N10872
Ipara v Porgera Landowners Association (2020) SC1969
William Chilen v The State (2011) SC1099
Paldir Community Services Development Ltd v Petkol Trading Ltd (2023) SC2425 

Counsel
P Harry for the appellants 
J Nandape for the respondents 

DECISION ON APPEAL

1.	BY THE COURT: These are two appeals against the decision of the National Court in OS No 4 of 2022, Jonathan Paraia, Pelly Pundi, Kurubu Ipara v Aken Puluku, Henry Lara, Sole Taro, Tabe Jugari and IPA (Paraia v Puluku (2022) N10115) which were ordered to be heard together. 

BACKGROUND

2.	Porgera Gold Mines Limited (PGML) is a landowner company in which the Porgera Local-level Government Special Purposes Authority (Authority), also known as the Porgera Development Authority (PDA), owns 10% of shares. According to PGML’s shareholder agreement, it is to have six directors, one of whom is to be appointed by the Authority. 

3.	In OS No 4 of 2022 the Appellants sought declarations that pursuant to a meeting of the Authority held on 11 February 2021 in compliance with the consent orders issued by Kandakasi DCJ on 5 February 2021, Kurubu Ipara was the legally appointed representative of the Authority. Furthermore, that the appointment of Aken Puluku on 9 April 2020 had been superseded and rendered a nullity and of no legal effect by the decision of 11 February 2021. Various declarations consequential to those orders were also sought.

4.	The orders sought were refused. 

CONSIDERATION

5.	The appointment of the Authority’s director to the PGML Board has a long and complex history of dispute.   

6.	At the heart of OS No 4 of 2022 was a dispute over whether the Authority met and appointed Kurubu Ipara or Aken Puluku as its nominee in accordance with the orders of 5 February 2021 made by Kandakasi DCJ in OS 190 of 2020 Kurubu Ipara v Thompson Kulara, Moses Pera, David Mapuli, Anako Aiyala as purported members of the Authority, George Poio as ex officio member of the Authority, Grayson Apakali as purported Acting General Manager of the Authority, Aken Puluku and the Authority that, inter alia: (4) the decision of the Authority of 9 April 2020 to remove Kurubu Ipara as nominee director and replace him with Aken Puluku was stayed pending confirmation of this decision by the Board; and (5) the Board of the Authority shall convene preferably within 7 to 14 days or at the earliest time possible and confirm its position on the appointment of Kurubu Ipara and Aken Puluku.

7.	It was the Appellants’ contention that the Authority met on 11 February 2021 and appointed Kurubu Ipara and revoked the appointment of Aken Puluku. It relied on an extract of resolution produced by legal counsel in his affidavit filed in response to contempt charges. The extract of resolution was signed by John Ondalane and Frederick Ipara. 

8.	The fact of the meeting and its outcome was disputed by the Respondents on the basis that the affidavits of John Ondalane contained no evidence as to the holding of the meeting, who attended or its quorum. There was no affidavit from Frederick Ipara.  

9.	The trial judge held that whilst there might have been a meeting on 11 February 2021 there was no quorum. 

10.	It was the Respondents’ contention on the other hand that there had been a differently constituted meeting of the Authority on 18 June 2021 in which Aken Puluku was appointed its director.  

11.	The trial judge found that decision too was invalid having regard to the orders made by Kandakasi DCJ on 29 November 2021 in OS(JR) 152 of 2021 Mande Kaima and Jones Pawe v Hon Pila Niningi MP as Minister for Inter-Government Relations, Thompson Kulara, Moses Peara, David Mapuli, Anako Aiyala, Grayson Apakali, and Monica Nita that, inter alia, the appointment of certain persons to the Authority on 11 June 2021 was null and void and that any subsequent decisions by them were also null and void. 

12.	In the upshot the trial judge found that the orders of 5 February 2021 had yet to be complied with and expressed the view that they may not be complied with until a decision was made in SCA No 65 of 2021, which appeal was brought against the orders of 29 November 2021 of Kandakasi DCJ in OS(JR) 152 of 2021 Mande Kaima and Jones Pawe v Hon Pila Niningi MP & Ors, referred to above. 

13.	Much was made in the present appeal of the fact that the trial judge refused to take judicial notice of a decision by Linge AJ on 10 May 2022 in OS No 127 of 2021, John Ondalane, Frederick Ipara v Thompson Kulara, Anako Aiyala, David Mapuli, Grayson Tau Apakali, Sailas Aiyala, Lei Bilip Kuala (Ondalane v Kulara (2022) N9988) and that if her Honour had done so she would have found that the meeting of 11 February 2021 appointing Kurubu Ipara had taken place. 

14.	Certainly, in general terms we would have expected the Court to take judicial notice of the fact of the orders made in those proceedings, which on their face concern the same Authority. Ms Nandape’s contention in the National Court that the trial judge was precluded from having regard to those orders because they were made in other proceedings was incorrect; and there is no doubt that Ms Nandape was aware of the orders as she appeared as counsel in that case.  

15.	Having said that, the trial judge in OS No 4 of 2022 was not bound by the decision as to whether or not a meeting occurred on 11 February 2021.  It does not appear that was in issue before Linge AJ.  Linge AJ proceeded on the basis that the relief which sought “to declare the validity of the decision of the PLLGSPA Management Board made on 11 February 2021 in Porgera in pursuance to Court Order of 5 February 2021 as valid, effective and enforceable”, had been granted by the Court in earlier proceedings and that the plaintiffs sought the balance of the relief sought in the statement of claim. He made certain findings and orders in that regard in relation to the parties named in those proceedings.  As such Linge AJ did not consider the validity of the 11 February 2021 meeting in any detail. Furthermore, in finding that the meeting of 11 February 2021 was valid his Honour referred to the orders of Kandakasi DCJ of 29 November 2021 in OS(JR) 152 of 2021 Mande Kaima and Jones Pawe v Hon Pila Niningi MP & Ors, above. Respectfully, those orders do not refer to any meeting on 11 February 2021 nor the appointment of Kurubu Ipara. The orders concerned certain appointments made on 11 June 2021 which, as observed by the present trial judge, rendered the appointment of Aken Puluku on 18 June 2021 invalid. It does not follow, however, that the meeting of 11 February 2021 was valid. 

16.	There is no dispute that the appeal in SCA No 65 of 2021 has since been withdrawn. 

17.	Evidence was tendered before us to show that the Minister appointed a new Board of the Authority on 23 November 2022. Furthermore, that the new Board met on 12 December 2022 and affirmed the previous appointment of Aken Puluku in place of Kurubu Ipara before immediately resolving to revoke the appointment of Aken Puluku and appoint Elizabeth Iarum as its nominee director on the board of PGML. The evidence was tendered pursuant to s 6(1)(a) of the Supreme Court Act. It is an interesting question whether it qualifies as fresh evidence: see William Chilen v The State (2011) SC1099; and Paldir Community Services Development Ltd v Petkol Trading Ltd (2023) SC2425 at [5] to [6], amongst others. On one view it does. It appears to us that it is in any event properly received pursuant to s 8(1)(c), Supreme Court Act.

18.	The appointment of the new Board by the Minister on 23 November 2022 was challenged in OS(JR) 53 of 2023 John Ondalane, Frederick Ipara, v Minister for Inter-Government Relations, Department of Provincial & Local-level Government Affairs, The State, Anako Aiyala, David Mapuli, Moses Peara, Nixon Mangape, Henry Lara, Mark Elepa, Elizabethe Lape. That challenge was dismissed on 1 July 2024 by Purdon-Sully J: Ondalane v Eoe (2024) N10872. 

19.	It is not clear to us whether that decision has been appealed. In all the circumstances, however, we are satisfied that events have overtaken the utility of this appeal. An appeal in such circumstances is an exercise in futility and open to dismissal: Ipara v Porgera Landowners Association (2020) SC1969.  We have decided to dismiss the appeal.

20.	The parties shall bear their own costs.

21.	We make the following orders.

ORDERS

(1)	The affidavits of Aken Puluku sworn 5 July 2024 and Nixon Mangape sworn 5 July 2024 are admitted.
(2)	The appeal is dismissed on the basis that events have overtaken the utility of the appeal.
(3)	The parties shall bear their own costs of the appeal.
________________________________________________________________
Lawyers for the appellant: Harry Lawyers	
Lawyers for the first respondent: Nandape Lawyers