Behori Incorporated Land Group v Sirinumu Development Company [2016] PGNC 417; N6862 (29 April 2016)

N6862

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 742 OF 2015

BETWEEN:
BEHORI INCORPORATED LAND GROUP
First Plaintiff

OMANI INCORPORATED LAND GROUP
Second Plaintiff

NARIME INCORPORATED LAND GROUP
Third Plaintiff

& FOXY KAEKA as DIRECTOR of BEHORI LIMITED
Fourth Plaintiff

AND:
SIRINUMU DEVELOPMENT COMPANY
First Defendant

& ROUNA INCORPORATED LAND GROUP
Second Defendant

Waigani: Injia CJ
2016: 29^th April

CONSTITUTIONAL LAW - Decision of National Executive Council- Recognition and effect to decisions made by highest Executive Body- Decision to appoint Ministerial Committee to oversee implementation of community development and benefit package for landowners of Sirinumu Land on which Sirinumu Dam is situated - Functions of Ministerial Committee usurped by Minister not member of Ministerial Committee - Functions of Ministerial Committee usurped by civil servants - Implementation of NEC decision referred back to Ministerial Committee.

Facts:

In 2015, the National Executive Committee (NEC) approved a Ministerial Committee chaired by the Minister for Trade, Commerce and Industry to oversee the implementation of community development and benefit package for landowners of Sirinumu Land on which Sirinumu Dam is situated. Amongst other responsibilities, the Ministerial Committee was responsible for negotiating and executing the sustainable development and benefit package for the Koiari people which included upgrading and sealing of the road. The government allocated K20 million for the project. A certain group comprising civil servants and community representatives constituted working committees which made recommendations on the disbursement of the money and obtained approval from the Minister for Finance who was not a member of the Ministerial Committee - Minister for Finance approved release of the K20 million to the first defendant only based on recommendation from the working group . Dispute arose over the disbursement of the money to this company. The plaintiff commenced proceedings to halt the payment to the first defendant. The National Court issued an interim consent order releasing K10 million to the disputing parties.

Held:

1. The decision of the NEC as the highest executive body is a decision made by a body established by Constitutional law, on any matter of national interest, that affects the legal rights and obligations of citizens to pursue their rights to claim compensation for the use of their resources, is to be recognized and enforced by the Courts. The maintenance of the Sirinumu dam that supplies water and electricity to the nation's capital is a matter of national interest that the NEC made its decision.
   
2. The responsibility for implementation of community development and benefit package for landowners of Sirinumu Land on which Sirinumu Dam is situated remained with the Ministerial Committee. The Committee did not perform its task. Instead the task was assumed by a working groups constituted by bureaucrats and Minister for Finance who was not a member of the Ministerial Committee. The recommendations and decisions of the working groups and the Minister declared invalid and balance of funds remaining returned to the Ministerial Committee to be disbursed following implementation of the NEC decision.
   

Cases cited:

Nil

Counsel:

P Harry, for the first, second and third Plaintiffs
C Nidue, for the fourth Plaintiffs
T Boboro, for the Defendants

JUDGEMENT
29^th April, 2016

1. INJIA CJ: The parties in this case represent various factions of the "Koiari people" who are the customary resource-owners of the land and water resources that accommodate the Sirinumu Dam and Rouna Power Stations that supply water and electricity to Port Moresby. A dispute has arisen between them concerning the way in which a government grant of K20 million made for the benefit of the Landowners of the Sirinumu and Rouna areas should be distributed amongst them.
   
2. The evidence in the case consist wholly of uncontested affidavits from all parties. I reserved my judgment after parties concluded arguments. This is my judgment on the case.
   

The Claim

3. By Originating Summons filed herein, the First, Second and Third Plaintiffs (main plaintiffs ), commenced proceedings seeking declaratory and consequential relief as follows:
   

(1) Pursuant to Section 155(4) of the Constitution and Order 12 Rule 1 of the National Court Rules, a declaration that the Government Cheque No. 007507 dated 13th November 2015 in the sum of K20 million made payable to Sirinumu Development Company Ltd and given to the said Company on 13th November 2015 contravenes the NEC Decision No. 356/2013 and the recommended and approved payees which include the Plaintiffs.

(2) Pursuant to Section 155 (4) of the Constitution and Order 12 Rule 1 of the National Court Rules a Declaration that the K20 million mobilization grant was recommended and approved for payment as follows:

• (a) Catchment Area- Iduhu Clan ILG (Chairman) - K5.0m;
• (b) Sirinumu Dam- Sirinumu Development Company Ltd- K5.0m;
• (c) Rouna 1- 4- Omani & Narime Clan ILG (Chairman) - K5.0m;
• (d) Lower Koiari - Behori Clan ILG (Chairman)- K4.0m.
• (e) Koiari Special Purposes Authority- SPA Chairman- K0.5m.
• (f) PM & NEC Project Steering Committee - Chairman SPC - K1.0m.
  

(3) Pursuant to Section 155 (4) of the Constitution and Order 12 Rule 1 of the National Court Rules a Declaration that Sirinumu Development Company Ltd does not represent the interests of the Omani, Narime and Behori Clan ILG owners of Rouna/Lower Koiari.

4. At the commencement of the trial, upon my intimation to counsel that s155 (4) of the Constitution is a provision that offers ancillary relief in aid of a primary right, the main plaintiffs in the case produced a formal statement of their case (Case Statement) that redefined the cause of action to one based on the enforcement of statutory duty under s 21 of the Prime Minister and National Executive Council Act 2002 (PM&NEC Act). The defendants also delivered a Case Statement that relied on the political nature of the decision made by the NEC and the political nature of the instruction given by the Minister for Finance to obtain release of the money to pay the first defendant. The fourth plaintiff who was joined later in the proceedings as a party to the case by leave of the Court delivered a Case Statement that in part supported the defendants' case. These Case Statements appear in Schedule A of this judgment.
   

Statement of the Case for the Parties

5. The original main plaintiffs' case for entitlement to the funds is founded on the implementation of a decision of the National Executive Council made in 2013 in NEC No. 356/13 decision. They say the Chief Secretary, based on a report and recommendation of a Departmental Technical Working Committee (TWC) that was set up to report on the way forward in implementing the NEC decision, instructed the Acting Secretary for Treasury to release the money to the groups recommended in the report. The instruction was lawfully made under s 21 (1)(f) of the PM & NEC Act and the Acting Secretary for Treasury was required by s21(1)(b) of the PM & NEC Act to comply with the instruction. Instead he paid the K20 million to only one (first defendant) of several groups including the main plaintiffs that were recommended in the TWC report. The defendant's case and that of the fourth plaintiff is based on what they call a "political decision" made by the NEC and implemented by the Acting Secretary for the Treasury based on a political decision or instruction issued by the Minister for Finance to the Acting Secretary to pay the K20 million to the first defendant only. The say there is nothing wrong with the political decision or instruction.
   

Evidence

6. The trial proceeded by uncontested affidavit evidence only. There were thirty (30) affidavits in total, fourteen (14) for the original plaintiffs, three (3) for the fourth plaintiff and thirteen (13) for the defendants. The affidavits are listed in Schedule B hereto.

Findings of fact

7. I make findings of fact based on the uncontested evidence before me and the arguments made by the parties at the hearing.
   
8. The subject matter of the government providing a compensation and benefit package for the Koiari people that live around the Sirinumu dam and Rouna Power Station areas has been the subject of ongoing discussions and negotiations between the Koiari people and the government for a long time. In 1992, National Executive Council (NEC) made a decision on the matter in decision No. 21 of 1992, particulars of which are not before me. On 28 August 2001, the government and the Koiari people signed a Memorandum of Understanding (MOU), particulars of which are also not before me. On 9th October 2013, the NEC in decision No. 356 of 2013, decided to review the 1992 decision and the MOU and made certain other decisions to resolve the matter. That decision is in the following terms:

“SUSTAINABLE DEVELOPMENT AND BENEFIT PACKAGE FOR KOIARI RESOURCE LANDOWNERS - INLAND, CATCHMENT AND LOWER KOIARIS

On 9th October 2013, Council:

(1) Noted the content of Policy Submission No. 269/2013;
(2) approved the review of the NEC decision No. 21/92 on the compensation demands, the Memorandum of Understanding (MOU) of 28th August 2010 and the Project for Koiari people;
(3) did not approve Recommendation (ii) of the submission to reconvene the State Task Force (STF) on the Koiari resource owners grievances, instead approved a Ministerial Committee to comprise the following Ministers to pursue the issue raised:

• (i) Minister for Trade, Commerce & Industry (Chairman);
• (ii) Minister for Treasury
• (iii) Minister for Health & HIV (AIDS);
• (iv) Minister for Transport
• (v) Minister for Religion, Youth & Community Development

(4) endorsed and approved the proposed Sustainable development and Benefit package for the Koiari Landowners, including the upgrading and sealing of the road from the National Capital District and Central Province Border to Sogeri;
(5) approved that National Capital District Commission and Eda Ranu will fund the upgrading and sealing road; and
(6) Approved for the Ministerial Committee to negotiate and execute the sustainable development and benefit package including the upgrading and sealing of the road with and for the Koiari people. (emphasis is mine)

9. There is no evidence before me of any work carried out by the Ministerial Committee. However the government did present a budget for the 2014 fiscal year in the sum of K20 million that was earmarked for "Landowners - Sirinumu & Rauna". There is no evidence of the work carried out by the Ministerial Committee to support the budget allocation. In the absence of such evidence, I am unable to find that the Ministerial Committee implemented the NEC decision that authorised the Ministerial Committee to "negotiate and execute the sustainable development and benefit package".
   
10. It transpired later that the TWC consisting of officers from the Department of the Prime Minister and NEC, the Department of Treasury and the Department of National Planning undertook consultations in 2014 to consider and make recommendations on a way forward to implement the NEC decision of 2013. The TWC produced a report under the hand of the Deputy Secretary of the Policy Advisory & Coordination Division of the Department of Prime Minister & NEC dated 18^th September 2014. The report contained recommendations for the distribution of the K20 million to named groups which included the main plaintiffs and the first defendant. The report was addressed to the Chief Secretary of Government.
    
11. The TWC report however omits to state the source of its authority to constitute itself as a TWC and to perform that function. The report omits to state whether the TWC was established by the Ministerial Committee and authorised to "negotiate and execute the sustainable development and benefit package" on behalf of the Ministerial Committee or the NEC and to make the recommendations for disbursement of the money to various groups and individuals including allocating K1 million to the Chairman of the PM & NEC Project Steering Committee. In these circumstances, TWC lacked the authority to establish itself and produce the report. For this reason, there can be no valid exercise of power and function by the TWC through its TWC report.
    
12. On the same day, the 18^th of September 2014, the Chief Secretary to Government acted on the TWC report. He instructed the Acting Secretary for the Treasury to pay the monies as recommended in the TWC report. Two (2) follow up letters were written to the Acting Secretary for Treasury on 21^st November 2014 and 19^th December 2014 respectively. The instructions contained in these three (3) letters from the Chief Secretary cannot be a valid exercise of power and function because the TWC report on which he based his instruction lacked lawful authority and validity.
    
13. The Acting Secretary for Treasury, did not act on the instruction of the Chief Secretary. Instead, the Acting Secretary for Treasury, acting on the instruction of the Minister for Finance, arranged for a cheque for K20 million to be raised by the Central Bank made payable to the first defendant only and the cheque delivered to it. The Acting Secretary for Treasury's performance of that function cannot be valid unless the instruction from the Minister for Finance is valid.
    
14. The Minister for Finance acted on a submission made by a group called the "Laloki Catchment Impact Areas Committee" (LCIAC) that comprised representatives of Sirinumu Development Company, Sirinumu Dam Koiari Landowners Group, Rouna Incorporated Land Group, Rouna 1, 2, 3 & 4 Koiari Landowners, Behori Holdings Ltd and Behori Koiari Landowners Group. The submission was made under cover of a letter dated 22^nd October 2015 and issued under the hand of one Peter Inara, who is described in the letter as "Director; Eda Ranu Board representing Koiari Landowners & Idutu Koiari Landowners". The LCIA report omits to state the source of its authority to constitute itself as such and to assume the task it undertook. The only reference in Mr Inara's letter that connects the LCIA to the NEC decision of 2013 is that "an officer from the national government office spared real time with us to address our concerns regarding the NEC Decision No. 356/13". I find that the LCIA established itself to move the project along. I find on the evidence that the LCIAC lacked authority from the Ministerial Committee to establish itself and its report and recommendations contained therein cannot be a valid exercise of power and function.
    
15. With regard to the instructions of the Minister for Finance, the LCIAC who supplied the Submission to him on which he based his instruction to the Acting Secretary for Treasury being made without authority, the Minister's instruction lacks proper basis. It cannot be said that the Minister for Finance was acting under the authority of the Ministerial Committee because he was not named as a member of the Ministerial Committee. There is no evidence he was added on later as a member of the Ministerial Committee by the NEC and was authorised by the Ministerial Committee to release the payment to the first defendant only.
    
16. It is true that the funds allocated in the budget were parked under an item in the budget that placed the funds under the joint responsibility of the Finance and Treasury Ministries or those two (2) Departments and these funds became accessible by either Ministries and Departments. This budget arrangements could lead to confusion. Whether such arrangement was proper depends on the lawful assignment of responsibilities and functions of the Department of Finance and the Department of Treasury and their respective ministries.
    
17. The lumping of functions and responsibilities of the Ministry for the Treasury and Ministry for Finance and their respective departments existed up until 2012 when the two ministries and departments were separated. For a long time, the Ministry of Finance and the Ministry of the Treasury were put under one Ministry and came under Ministry of Finance. That changed when the Ministry of the Treasury and the Ministry of Finance were separated and became two separate Ministries. The latest Determination of Titles and Responsibilities of Ministers made under s 148 of the Constitution and produced before me was issued on 10^th August 2012 and an earlier Determination issued on 8^th June 2012. The June determination had the Ministry for Treasury, Finance and Border Development coming under one Ministry. The August Determination had the Ministry for Treasury and Ministry for Finance separated under two distinct Ministries. The August Determination, I take it, is the Determination in force now. There is no evidence before me that clearly differentiates the functions between these two Ministries. However I discern from and find that their respective functions are as those outlined in Column 3 of Schedule 3 of the gazetted Determination and the statutes that the respective Ministries are responsible for their administration to be those appearing in Column 4 of Schedule 3, and no more.
    
18. Pursuant to the August 2012 Determination, the Ministry of the Treasury is mainly responsible for the nation’s fiscal policy and revenue collection. More specifically, the functions of the Ministry of Treasury include responsibility over the Department of the Treasury, the Bank of Papua New Guinea, ICCC and IRC. The Ministry is responsible for the corresponding statutes from which those functions are derived, amongst them, the Appropriation Acts and the Income Tax Act, and the Central Banking Act 2000.
    
19. The functions of the Ministry for Finance are limited to all matters related to the functions of the Department of Finance; Expenditure of Finance; Expenditure of Public monies and Maintenance of public accounts. The Department of Finance and its Secretary comes under his responsibility. The Ministry of Finance is responsible for only one statute and that is the Public Finance Management Act. Under that Act, the Department of Finance is responsible for operating a Public Account for the National Government and Provincial Governments, that consist of the Consolidated Revenue Fund and Trust Funds out of which appropriations made by the Parliament are paid into and disbursed to government departments and bodies: see ss 10 - 19.
    
20. The upshot of this analysis is that it was wrong for the budget to park the funds for the Landowners of the Sirinumu and Rouna areas under a shared budget item that allowed for two different Ministries and Departments to administer those funds. It is inconsistent with the prevailing Determination of Ministries and their functions and responsibilities issued under s 148 of the Constitution. It is this mistake that may have caused confusion and which may have led to the Minister for Finance issuing the instructions (to release the funds) to a Secretary for a Department who did not come under his responsibility.
    
21. It follows that the functions of the Acting Secretary for Treasury did not come within the Minister for Finance's authorised functions under the prevailing Determination issued under s 148 of the Constitution. In the circumstances, there was no valid exercise of power or performance of authorised functions by the Minster for Finance. The Acting Secretary for the Department of the Treasury was responsible only to the Minister for the Treasury. He was not responsible to the Minister for Finance. I find that the Acting Secretary for the Treasury acted outside of his powers and functions to have received a request from the Minister for Finance to arrange for the release of money to the First Defendant.
    
22. Assuming the TWC was validly constituted to conduct the exercise and to make the recommendations it did, the Chief Secretary to Government acted within his powers to instruct the Acting Secretary to release the payment as per the recommendations contained in the TWC report.
    
23. Instead the Acting Secretary wrongly accepted the request from the Finance Minister. The LCIAC which had no authority from the Ministerial Committee acted outside of its authority in constituting itself as such and submitted its report to the wrong Minister who was not a member of the Ministerial Committee. The LCIAC should have directed its submission to the Chairman of the Ministerial Committee who was the Minister for Trade, Commerce and Industry.
    

Legal foundation of the claim

24. The findings I have reached all lead me to reach just one determinative point: the legal foundation upon which on the claims of the parties to the entitlement of those funds are advanced and the associated legal basis upon which their rights to receive the benefits are determined. The only legal foundation for the funds that have been allocated and may be allocated in the future for this cause is the decision of the NEC. The NEC's decision is a valid decision that was made by the body that is established by Constitutional law to make such decision in order to resolve an issue of national importance. The NEC is the collective body of Ministers that comprise the NEC chaired by the Prime Minister. An individual Minister or a portion of them cannot constitute or substitute the NEC. It is NEC's lawful prerogative to authorise and assign a Minister or a Committee of Ministers to carry out a function on its behalf. That decision cannot be dismissed as a "political decision", particularly in those cases where the decision impacts on the people's civil rights and obligations. The decision in this case is an example of such a decision that affects the legal rights of resource owners of the land and water resources in question to receive benefits for the use of their resources by the State. The decision therefore has legal implications. The Minister or Committee of Ministers charged with the task should take the task seriously and perform it. It is one thing for the NEC to make a decision and another thing for those of its members who are tasked with implementing the decision to actually perform the assigned task. The failure by the Ministerial Committee in this case to perform that task include failing to hold meetings, conducting negotiations, reaching and executing an agreement with resource-owners and disbursing payments. It is for the Ministerial Committee to engage the bureaucracy to provide administrative and technical support from which the Ministerial Committee can reach a decision. The bureaucracy should not hijack the process, assume for itself powers it does not have and to constitute itself and design schemes to disburse the payments according to its own wish without any authorisation from the Ministerial Committee.
    
25. It appears from the evidence before me and the submissions made by the parties that all the parties in this case represent different factions of the Koiari people that live around the Sirinumu and Rouna areas. There are other Koiari's who may also qualify for the benefit but are not represented by any of the parties in these proceedings. Then there are those landowners that are represented by the parties who may not be genuine landowners. Just who is entitled to receive what amount is the poignant question to which this Court does not have an easy answer. The answer is to be found in the very decision made by the NEC to task a Ministerial Committee to negotiate and execute a benefit package for the Sirinumu and Rouna Landowners and that would determine funds to be allocated and disbursed to the landowners.
    
26. The NEC in its wisdom foresaw the national importance of the resources of the Koiari people that they had contributed to supporting life in the nation's capital for a very long time and decided to commit a high level Ministerial Committee to carry out the task. The NEC was opposed to the reconvening of the State Task Force that presumably consisted of bureaucrats to perform that task. The Ministerial Committee never performed that task. Instead bureaucrats have hijacked the political process and taken over and constituted different working committees, who in turn have sought release of the funds to groups and individuals including a proposed Project Steering Committee, according to their own preferences.
    
27. I am satisfied that the answer to the poignant questions being raised here lies in the hands, not of those bureaucratic bodies or outside Committees established with their assistance or any one government or private individual. The answer too does not lie with this Court. The answer lies squarely in the hands of the Ministerial Committee.
    

Conclusion

28. For the foregoing reasons, I dismiss the proceedings brought by the principal plaintiffs. Consequently, the balance of the funds, ordinarily, should be returned to its owner- the State. However, to protect the funds from sinking into the Consolidated Revenue basket and to protect the rights of the genuine resource-owners, I am prepared to order a retention of those funds by the Registrar of the National Court in its trust account, to be released to beneficiaries identified by the Ministerial Committee, in a report signed by all members of the Ministerial Committee as per NEC decision No. 356/2013. Both the TWC, LCIAC and the PM & NEC Project Committee should be disbanded. Consequently, any future instruction issued by the Ministerial Committee following this decision should not include any payment to the Chairman of the PM & NEC Project Steering Committee. Each party should pay their own costs of the proceedings.
    

Orders

29. The Court orders that:
    
    • (1) It is declared that the parties in these proceedings are not entitled to be paid the K40 million appropriated by the Government in the 2015 National budget for "Landowners- Sirinumu and Rauna" areas, until such time as Order No. 2 hereof is complied with.
      
    • (2) Pursuant to resolution No. 3, 4 and 6 of the NEC Decision No. 356/2013, the Ministerial Committee carry out the task assigned to it by the NEC, that is to "negotiate and execute the sustainable development and benefit package" for the Koiari people forthwith. That Ministerial Committee is comprised of the Minister for Trade, Commerce & Industry as Chairman, Minister for Treasury, Minister for Health & HIV (AIDS), Minister for Transport and Minister for Religion, Youth and Community Development. The Ministerial Committee shall be at liberty to formally engage technical and other resource personnel to carry out its function.
      
    • (3) Upon completion of its given task, the Ministerial Committee shall provide to the Registrar of the National Court a report containing decisions with regard to how, to whom and how much of the monies held by the Registrar shall be paid out, and the Registrar shall so comply. Such recommendation shall not include payments to any Technical or other working Committees or Groups comprised solely of bureaucrats or groups of landowners constituted by bureaucrats.
      
    • (4) The Registrar shall retain the funds held by him until they are disbursed in compliance with Order No. 2 above.
      
    • (5) The decisions, instructions, submissions, requests and the like made or issued by the TWC, LCIAC, Minister for Finance, Chief Secretary to Government and Acting Secretary for Treasury in respect of the release of the said K40 million are all declared void as having made or issued without lawful authority.
      
    • (6) The establishment of the TWC, LCIAC and the PM & NEC Project Steering Committee and tasks assigned or assumed by itself on the matter of compensation for the resource owners of the Sirinumu Dam and Rouna Power Station areas are declared invalid and void.
      
    • (7) For the purpose of facilitating compliance with Order No. 2 hereof, these proceedings remain on foot. Upon compliance with Order No. 2, the Court file shall be closed.
      
    • (8) Each party shall bear their own costs of these proceedings.

______________________________________________________
Stevens Lawyers: Lawyer for the First, Second & Third Plaintiffs
Nidue Lawyers: Lawyer for the Fourth Plaintiff
Tyson Boboro Lawyers: Lawyer for the Defendants

SCHEDULE A

The Principal plaintiffs' statement of their case is:

(1) Cause of Action

The plaintiffs' cause of action stems from the decision made by the Acting Secretary of the Department of Treasury on 13th November 2015, to pay cheque No. 007507 in the sum of K20 million to Sirinumu Development Company, being mobilization grant monies for the Koiari Landowners, which in effect contravenes letter dated 18th September 2014 by the Chief Secretary to Government implementing the NEC Decision No.356/13, which clearly identified not only Sirinumu Development Company Ltd, but the Omani-Narime Clan ILGs who have been identified to receive K4.5 million, and Behori ILG who has been identified to receive K4.0 million, as well as Idutu landowners.

(2) Legal Basis

The legal basis for which the Plaintiffs seek orders in the nature of a declaration is based upon Section 21(f) and Section 21 (2) (b) of the Prime Minister and National Executive Council Act 2002.

Section 21 (1)(f) states:

“The Chief Secretary to Government may at any time, for the purpose of the performance of his functions under this Act or any other law-

..."issue directive relative to his functions to a Departmental Head and to the head of a public body."

Section 21 (2)(b) states:

"All Department Heads, heads of public bodies and officers of the National Public Service and of public bodies shall-

(b) comply with any directions issued under Subsection (1)(f).

(3) Evidence Relied Upon:

1. NEC Decision No. 356/2013 in Special Meeting No. 31/2013 dated 9th October 2013.

2. Brief dated 18th September 2014 by Mr. Trevor Meauri, Deputy Secretary, Policy and Advisory, Department of Prime Minister and NEC, implementing NEC decision No. 356/2013, with recommendation from Technical Working Committee.

3. Letter dated18th September 2014 by former Chief Secretary to Government, Sir Manasupe Zurenuoc to Acting Secretary for Treasury, Mr Dairi Vele, directing him to pay K20 million to the identified impact Koiari Clan ILGs.

4. First follow up letter dated 21st November 2014 by the Chief Secretary to Government to Acting Secretary for Department of Treasury, requesting the Department to release mobilization grant to impact Koiari ILGs.

5. Second follow up letter dated 19th December 2014 by the Chief Secretary to Government to Acting Secretary for Department of Treasury, requesting the Department to immediately release the grant as per the breakup sanctioned by the Technical Working Committee.

4. The fourth plaintiff supports the Defendants' case. His case is set out after the Defendants' statement of case.

The Defendants' statement of case is:

(1) The defendants' case is that the payment by the National Government made through the Department of Finance and the Department of Treasury on 13 November 2015 was made pursuant to a submission that the Laloki Catchment Impact Area Committee ("the Committee, made to the Minister for Finance ("Minister) on 22 October 2015. The Defendants and the Fourth Plaintiff are members of the Committee.

(2) The submission was considered by the Minister and then on 2 November 2015, the Minister directed the Secretary for Treasury to release the payment of K20 million to the First Defendant.

(3) Thus, the payment was made pursuant to a political direction and that there is nothing wrong with the payment of K20 million to the First Defendant.

(4) The Plaintiffs say that they were nominated as beneficiaries to these funds (K20 million) by a letter of the Chief Secretary on 18 September 2014 and therefore the payment should have been made in accordance with the direction of the Chief Secretary.

(5) However, as will be shown by the evidence of the Defendants, the payment was made pursuant to the political directive of the National Government through the Minister for Finance.

(6) The question therefore is, in the National Government obliged to pay as per the letter of the Chief Secretary of 18 September 2014? Or does the political directive override the bureaucratic directions of the Chief Secretary made in his letter of 18 September 2014.

(7) The Defendants will argue that that since the directive of the Chief Secretary of 18 September 2014, events overtook the bureaucratic process and so the payment was made pursuant to a political direction of the National Government and therefore, there is nothing wrong with the payment to the First Defendant. The Plaintiffs case should therefore be dismissed.

The Fourth Plaintiff's statement of the case is:

(1) The Fourth Plaintiff filed a Notice of Motion on 30th December 2015 to be joined as a Plaintiff to the proceedings.

(2) The bases for the application to join were that:

(a) First Plaintiff was not properly incorporated under the Provisions of the Incorporated Land Group (Amendment) Act 2009;

(b) There were other Behori ILGs in existence such as the Behori Gahaia ILG and the Behori Nabagowabaka ILG No. 10716;

(c) Fourth Plaintiff is a representative of six (6) villages of Behori Clan made up of three (3) villages from Koiari and three (3) villages from Koita;

(d) Fourth Plaintiff was party to the Laloki Catchment Impact Area Committee (LCIAC) which were responsible for compiling the Mobilization Project Objective Documentation Submission of 22nd October 2015; and

(e) Fourth Plaintiff was left out of the LCIAC payments made to the Defendant because on 16th November 2015 the LCIAC held a meeting and removed him as a payee without his presence because at the time between 15th and 16th November 2015, he was resting after recovering from a heart attack.

3. After negotiating with the Defendant and the First Plaintiff draft Consent Orders were signed and presented to Court and the Court endorsed Consent Orders on 4th February 2016 and the sum of K5 million held at the National Court was ordered to be paid to the Behori Clan.

4. Legal fees were released to the First and Fourth Plaintiffs' Lawyers pursuant to the Consent Court Order but there has been no agreement as to the release of the balance of monies because of disagreement between the First and Fourth Plaintiff as to:

(a) Whether monies should be released to Behori Clan ILG;

(b) Whether monies should be released to Stevens Lawyers Trust Account for the First Plaintiff; and

(c) Purpose for which monies are to be released.

5. Fourth Plaintiff's disagreement to release monies are that:

(a) Behori Incorporate Land Group or Behori Clan ILG are not registered in accordance with Incorporated Land Group (Amendment) Act 2009;

(b) Stevens Lawyers are Lawyers whose client is the First Plaintiff and will only deal with requests from its client to disburse monies and not the Fourth Plaintiff;

(c) The Fourth Plaintiff wants monies to be used for Land Mobilization and Land Registration which it says must commence with social mapping, clan vetting, boundary survey and registration of new Behori ILG in accordance with the provisions of the Incorporated Land Group (Amendment) Act 2009.

6. Fourth Plaintiff supports the First Plaintiff's cause of action however, suggests that there is no utility in pursuing the cause of action because Defendant has acknowledged that the K5 million held in the National Court Trust Account belongs to Behori Clan.

5. The issue for determination is access to the balance of K5 million held in the National Court Trust Account by Behori Incorporated Land Group that is duly recognized by Law after being registered in accordance with the provisions of the Incorporated Land Group (Amendment) Act 2000.

SCHEDULE B - AFFIDAVITS

OS 742 OF 2015 – Behori ILG, Omani ILG, Narime ILG, Foxie Kaeka as Director of Behori Ltd vs Sirinumu Development Company Ltd & Rouna ILG

LIST OF EXHIBITS

No.	Item Description	Court File Doc. #	Exhibit Marked As	Position of witness
A.	Exhibits for the 1st to 3rd Plaintiffs – Behori ILG, Omani ILG & Narime ILG
	Affidavit of Saroa Beredi, sworn 15th/11/15 and filed 16th/11/15.	3	Exhibit “A”	Chairman of Narime ILG
	Affidavit of Warite Bore, sworn 15th/11/15 and filed 16th/11/15.	4	Exhibit “B”	Chairman of Omani ILG
	Affidavit of Uma Asi Bore, sworn 15th/11/15 and filed 16th/11/15.	5	Exhibit “C”	Chairman of Behori ILG
	Supplementary Affidavit of Uma Asi Bore, sworn 25th/11/15 and filed 25th/11/15.	18	Exhibit “D”	Chairman of Behori ILG
	Supporting Affidavit of Uma Asi Bore, sworn 6th/12/15 and filed 8th/12/15.	28	Exhibit “E”	Chairman of Behori ILG
	Supplementary Affidavit of Saroa Beredi, sworn 6th/12/15 and filed 8th/11/15.	29	Exhibit “F”	Chairman of Narime ILG
	Affidavit of Willie Abari, sworn 6th/12/15 and filed 8th/12/15	30	Exhibit “G”	Next of kin to Paramount Chief of Omani clan of Rouna – late Abari Ata.
	Supplementary Affidavit of Warite Bore, sworn 14th/12/15 and filed 14th/12/15	36	Exhibit “H”	Claiming to be Chairman of Omani ILG, as per meeting minutes of 28th/9/14.
	Supplementary Affidavit of Willie Abari, sworn 14th/12/15 and filed 14th/12/15	37	Exhibit “I”	Next of kin to Paramount Chief of Omani clan of Rouna – late Abari Ata.
	Affidavit of Willie Abari, sworn 16th/12/15 and filed 16th/12/15	39	Exhibit “J”	Paramount Chief of Omani Clan, Rouna area.
	Affidavit of Iani Waeako, sworn 20th/01/16 and filed 20th/01/16	46	Exhibit “K”	Chairman of Idutu Koiari Vatiaba Association Inc.
	Affidavit of Uma Asi Bore, sworn 7th/03/16 and filed 7th/03/16	58	Exhibit “L”	Chairman of Behori ILG
	Affidavit of Derrick Mara, sworn 14th/03/16 and filed 14th/03/16	67	Exhibit “M”	Assistant Secretary Provinces, Budget Division, Dept of Treasury. Chairman of Technical Working Committee (TWC) – Koiari Sustainable Development and Benefit Package.
	Affidavit of Pati Tom, sworn 14th/03/16 and filed 14th/03/16	68	Exhibit “N”	Treasurer of Behori ILG
B.	Exhibits for the 4th Plaintiff – Foxie Kaeka as Director of Behori Ltd
	Affidavit of Foxie Kaeaka, sworn 24th/12/15 and filed 30th/12/15	43	Exhibit “O”	Director and Shareholder of Behori Limited, a company incorporated to represent business interests of Koiari Behori and Koita Behori Clans.
	Affidavit of Raymond Nanopa, sworn 21st/01/16 and filed 22nd /01/16	47	Exhibit “P”	Registered Surveyor, deposing facts in Affidavit, in support of Foxie Kaeaka.
	Affidavit of Foxie Kaeaka, sworn 9th/03/16 and filed 10th/03/16	65	Exhibit “Q”	Director and Shareholder of Behori Limited, a company incorporated to represent business interests of Koiari Behori and Koita Behori Clans.
C.	Exhibits for the 1st & 2nd Defendants – Sirinumu Development Company Ltd; and Rouna ILG
	Affidavit of Arua Soge, sworn ____ and filed 19th/11/15	12	Exhibit “R”	Secretary of Rouna ILG.
	Affidavit of Peter Inara, sworn 18th/11/15 and filed 19th/11/15	13	Exhibit “S”	Chairman of Idutu Koiari Development Company Ltd.
	Affidavit of Steven John, sworn ____ and filed 19th/11/15	14	Exhibit “T”	Chairman of Sirinumu Development Company.
	Supplementary Affidavit of Arua Soge, sworn 25th/11/15 and filed 25th/11/15	19	Exhibit “U”	Secretary of Rouna ILG.
	Affidavit of Hamita Hokogo, sworn 25th/11/15 and filed 25th/11/15	20	Exhibit “V”	Advisor to Minister for Finance Hon. James Marape.
	Affidavit of Moio Asi, sworn 4th/12/15 and filed 4th/12/15	24	Exhibit “W”	Deputy Chairman of Narime ILG.
	Affidavit of Kala Meia, sworn 4th/12/15 and filed 4th/12/15	25	Exhibit “X”	Chairman of Omani Clan ILG.
	Affidavit of Kelly Womara, sworn 4th/12/15 and filed 4th/12/15	26	Exhibit “Y”	Member of Ianari Clan of Rouna,Sogeri
	Affidavit of Mabi Soge, sworn 8th/12/15 and filed 10th/12/15	34	Exhibit “Z”	Secretary for Omani Clan ILG.
	Affidavit of Babea Toina, sworn 8th/12/15 and filed 11th/12/15	35	Exhibit “AA”	Deputy Chairman of Rouna ILG
	Affidavit of Killian Anoser, sworn 2nd /3/16 and filed 3rd /3/16	52	Exhibit “BB”	Director Economic Development Services, Dept of PM & NEC. Director responsible for co-ordination of all activities for establishment & implementation of K20m Koiari Sustainable Development program.
	Affidavit of Gibson Niawang, sworn 3rd/3/16 and filed 7th/03/16	55	Exhibit “CC”	Part of a Committee with the Dept of PM & NEC, representing Dept. of Treasury. Committee which dealt with the Koiari Landowners of Sirinumu Dam, Rouna 1,2,3&4 areas in 2013 to assist with a Sustainable Development Assisted Package funding.
	Affidavit of Joshua Ove, sworn 7th/3/16 and filed 8th/3/16	59	Exhibit “DD”	Part of a Committee with the Dept of PM & NEC, representing National Intelligence Organization (NIO). Committee which dealt with Koiari Landowners particularly Sirinumu Dam Catchment areas and Rouna 1,2,3&4 areas 2013 to assist with policy submission for Sustainable Development Benefit Package(SDBP).