Inugu v Maru [2021] PGNC 505; N9309 (16 November 2021)

N9309

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 366 OF 2017

BETWEEN:
ROSELYN INUGU, MARGARET INUGU, ANA INUGU, & VERONICA INUGU as Members of the Management Committee of the YAKAINGI BUSINESS GROUP (INC)
First Plaintiff

AND:
YAKAINGI BUSINESS GROUP (INC)
Second Plaintiff

AND:
HON. RICHARD MARU, MP in his capacity as The MINISTER FOR TRADE INDUSTRY & COMMERCE
First Defendant

AND:
ALEX TONGAYU in his capacity as the REGISTRAR OF COMPANIES
Second Defendant

AND:
NAKANDA KAIMALAN in His Capacity as a member of the Purported Management Committee of YAKAINGI BUSINESS GROUP (INC)
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2020: 21^st September
2021: 16^th November

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of motion – Application Referral Mediation – Rule 5 (2) ADR Rules – Prejudice to Other Parties – Compliance Order Mediation – Mediation Substantial Work or Trial – Nature of Relief Suitability Mediation – Attitude of Parties Mediation – Earlier Attempt If Any Mediation – Deferral Final Orders On Application for Mediation – Interest Of Justice – Material Relied Sufficient – Mediation Order Granted in Terms Applied & Proposed – Costs in the Course.

Cases Cited:

Able Construction Ltd v W R Carpenter (PNG) Ltd [2014] PGNC 87; N5636

Rimua v Ekanda [2011] PGSC 12; SC1094
Counsel:

A. Serowa, for Plaintiffs
D. Dusava, for Third Defendant

RULING

16^th November 2021

1. MIVIRI, J: This is the ruling on the notice of motion of the first and second plaintiffs of the 17^th September 2021 pursuant to Order 16 Rule 13 (13) of the National Court Rules and Rule 5 (2) of the Rules relating to ADR Rules primarily for the referral of the proceedings to Mediation.
   
2. Secondly for the adjournment of the proceedings to a later date pursuant to Order 16 Rule 13 (12) of the National Court Rules for the Proceedings to be adjourned to a later date fixed by the Court for Directions hearing pending the commencement and conclusion of the mediation.
   
3. And costs be in the course and any other orders as discretion by the Court.
   
4. The motion is supported by the affidavits of Roselyn Inugu, firstly of the 17^th September 2021 annexure “A” to which is her earlier affidavit of the 13^th September 2017. She deposes that she is the current chairlady of the Management Committee of the Second Plaintiff. And She reiterates her position earlier set out in the affidavit of the 13^th September 2017. She contends that the real dispute lies between the first plaintiff and the third defendants. “We are family members and this dispute amongst us has caused a lot of division in the Inugu Family. Whilst this proceeding was afoot, Mr Adrian Inugu and Mr Nelson New Inugu, the Co-third defendants died. Only Mr Luke Nakanda of the third defendants is alive.
   
5. It is proper this matter be channelled through mediation so the Plaintiffs and the third Defendant can attempt to reconcile the dispute giving rise to this proceedings.” Her views as the principal plaintiffs shows light in the dispute. Mediation will get the parties involved; they will contribute to the resolution of the dispute from where they stand guided by the mediator. Rule 3 (2) of the ADR Rules defines, a mediator as, “(1) a neutral third party who helps and facilitates parties in a dispute to communicate with each other and help them to, identify, clarify and explore issues, develop and evaluate options, consider alternative process for bringing their dispute or conflict to a conclusion and enable them to reach an agreement or make their own decisions about how to forward and or enhance their communication in a way that addresses their mutual needs with respect to their individual interests with future actions and outcomes and enable them to reach their own agreement or make a decision based on the principle of self-determination; and

(2) a neutral third party who has the necessary expertise and may with the consent of the parties use a blended process and

(3) includes a provider of other forms of ADR;

who is accredited as such under these Rules".

6. And it is clear by the short submission of learned Counsel for the third defendant, that his client does not dispute the application, but voices that mediation was earlier attempted but saw no light. It may lead similar and maybe an exercise without benefits due. His views are not backed by material independently placed so as to cement that assertion against the application made. In my view it does not seriously draw the balance against the application made. In any case the earlier attempt at mediation was in 2013. But the following has been urged by counsel for the applicant/plaintiffs that mediation is in order.
   
7. Mediation by the same rules set out above is defined as, "'mediation' means the process a mediator uses to help the parties in a dispute to identify their disputed issues, develop and evaluate options, and enable them to make their own decisions about how to forward and or enhance their communication in a way that addresses their mutual needs with respect to their individual interests with future actions and outcomes and enable them to reach their own agreement or make a decision based on the principle of self-determination and includes blended processes and customary forms of mediation."
   
8. The materials to gauge are essentially in the affidavits set out above, including that of Veronica Inugu. And primarily established from these affidavits are the following facts; The Yakaingi Business Group Inc, (YBG) was founded and operated by Late Daniel Inugu father and husband of the First Plaintiffs. And the third defendant is son of Late Daniel Inugu’s elder brother. In 2010 Daniel Inugu died intestate and the dispute arose as to the composition of the management committee of YBG. It was between the plaintiffs and Adrian Inugu. A number of proceedings were instituted as a result including the present.
   
9. Adrian Inugu appointed the third defendant to be a committee member of his purported management committee of YBG alongside with Nikanda Kiamilan. On the 22^nd April 2021 Adrian Inugu and Nia Inugu were parties to this proceedings as co third defendants but were removed because in the course, Adrian Inugu and Nelson Inugu both died.
   
10. The relationship has been soured between the family because of this dispute. It has created divisions amongst themselves. As a result, family members do not see eye to eye. And the toll it has taken is such that it ought to be proper that the first Plaintiffs and the third defendants together with the other parties go for mediation to come to terms together.
    
11. At the outset to facilitate it is important to determine whether the mediation will result in prejudice to the rights of any of the parties: Rule 5 (3) (a) ADR Rules. Because of the concession set out above in the words of the Plaintiffs and seen out by the laxed position of the third defendant, there really is no prejudice to either side in the proceedings should mediation be opted.
    
12. Which leads to whether it is reasonably within the abilities and the power of a party to comply with an order for mediation having regard to matters such as any urgency in the proceedings, costs, multiplicity of parties or lack of resources: Rule 5 (3) (b) ADR Rules.
    
13. This is a close-knit family that has been torn apart by this dispute. Instead of benefitting and enjoying the fruits of the Business Group a barrier has been dug in between so that one part of the family is on one side, whilst the other is on the other side. It is sad to also note that the man who started the business group has now died with two others from the defendants. No doubt in this light, mediation is an option where the family can sit across the table from each other eye to eye and see out the dispute with the help of a mediator. An internal mediator in this regard can be appointed to oversee to help the parties reach a lasting decision in the matter. After all they are family members on either side of the dispute.
    
14. Multiplicity of proceedings has brought up the expenses without solution to the dispute and is continuing as at this time. Time has been wasted odds at end without sight of an end. To be at a trial no doubt will be by lawyers not the family on either side. Mediation will draw both families to come and sit down and talk over the matter guided by a mediator to reach a solution not imposing but acceptable across the equilibrium at both ends of the dispute. Trial will impose in law applied to the facts. Mediation will be not parallel in similar vein. It would be important to settle the family relationship to get the dispute to its core to settle amongst. And mediation will trim it out for the trial if it comes to that level after. What will be as a result will fine tune to arrive at issue to settle the dispute.
    
15. Therefore whether the mediation will draw substantial work is that it will draw down on the trial issue and better preparation thereafter after, consistency with Rule 5 (3) (c) of the ADR Rules.
    
16. Because the administrative decision that was made on the 15^th December 2016 resulting in the change in the composition of the Management Committee of YBG is what is sought out by the plaintiff here. In a way from the way that the third defendant has voiced an opportunity should be accorded to see out the process. It is an opportunity for all defendants to participate with the plaintiff to reach a final decision in the matter given all set out above.
    
17. This view is fortified by the affidavit of Hon. Richard Maru dated the 24^th June 2020 document 65 on the court record. He is a member of parliament current and deposes that the decision the subject of the review was made in his capacity as Minister then of Commerce and Industry but he is no longer in that capacity. That he is aware of the internal issues between the family members of the Yakaingi Clan primarily a dispute as to which group is the legitimate management committee of the Yakaingi Business Group Incorporated. That is very clear by the naming of the parties both plaintiffs against defendants in the proceedings. It is important in the light of this application to see out that alternative to settling this dispute. There ought to be an end to litigation and the issues outstanding questions that must be answered as the real questions underlying must be incorporated so as to meet that end.
    
18. It is timely to see out mediation based on the status of the proceedings so far set out by document 83 Court Order of the 17^th May 2021 in which they are no sight to a hearing on the matter. In particular there is no review book on the record of the proceedings evidencing compliance of the orders in this instance by the defendants. And therefore, trial is not in sight or near to it. Earlier with now deceased Adrian Inugu mediation was attempted in 2013 but failed. There is no evidence that this is the case now. There is no material against and the circumstances has changed which is now evidenced by the third defendant and his views placed by his counsel here. It is a concerted effort to see out a proceeding that has been on the record of the court since 2017. Which is three years given all set out above it is in the interest of justice that the matter proceeds by mediation as applied.
    
19. It is consistent with the Courts tendency by its ADR rules to see out mediation as an alternative to the formal court process. Where the parties own the decision because they carved it out with the guide of a mediator an independent person who has helped them to reach finality in the matter. Similar observation has been made by this Court in Able Construction Ltd v W R Carpenter (PNG) Ltd [2014] PGNC 87; N5636 (18 June 2014).
    
20. Underlying here in the application is that the primary proceedings is appropriate for mediation. And a mediator appointed is available to conduct it. It is conducted and reported back to Court within time fixed so as to see finality in the proceedings: Rimua v Ekanda [2011] PGSC 12; SC1094 (19 April 2011).
    
21. The aggregate by all set out above is that the plaintiff has satisfied the balance by the reasons set out for grant of its application, by the notice of motion for this matter to now proceed to mediation. The application is granted with the following orders now confirmed as the orders of this court in the matter:
    
    • (1) Pursuant to Rule 5 of the ADR Rules, the proceedings are referred to mediation by an internal mediator which shall be assigned by the Assistant Registrar of the ADR no later than 19^th November 2021.
      
    • (2) The Plaintiff and the third Defendant shall equally pay the internal mediators fees before the Commencement of mediation.
      
    • (3) The Venue for the mediation shall be at the ADR Centre of the National Court at Waigani subject to availability or such other venue as the mediators and the parties agree to.
      
    • (4) The purpose of mediation is for the parties to make genuine and good faith attempts to;
      
      • (a) Resolve all or any parts of the proceedings; or
        
      • (b) Failing settlement, identify and limit the real and meritorious issues in the proceedings that warrant judicial consideration and determination.
        
      • (c) Enable parties to reach a consensus on the conduct of litigation.
        
    • (5) For the purposes of the mediation, the parties shall settle upon a Statement of Agreed and Disputed Facts and Issues for Determination (Statement), for which purpose:
      
      • (a) The Plaintiff shall draft and forward to the Defendants a draft of the Statement within 14 days of the Court Order;
        
      • (b) The Defendant is to reply to the Statement within 7 days of the receipt of the Statement from the Plaintiff; and
        
      • (c) The Parties shall settle the Statement within 7 days of reply by the Defendants.
        
    • (6) The Mediation shall be conducted no later than 01^st December 2021 and concluded no later than 10^th December 2021.
      
    • (7) If no settlement is reached at the conclusion of the initial mediation, the matter shall return to Court on the 13^th December 2021 at 9.30am for case management conference to consider the most economic and effective means to bring the proceedings to trial expeditiously.
      
    • (8) Where all or some parts of the proceedings are resolved, the parties shall settle upon a draft consent order reflecting their agreement for the Courts consideration and endorsement or as the case might be, unless there is a serious legal impediment.
      
    • (9) At the case management conference:
      
      • (a) The parties shall demonstrate to the satisfaction of the Court that existence of a serious or meritorious issue which can only be heard and determined by the Court;
        
      • (b) On such a case being made out, the Court may make such other orders and or further directions as necessary to have the matter tried expeditiously.
        
    • (10) A failure to comply with all or any of these or the previous orders for mediation shall result in such orders and judgments as the Court considers appropriate against the defaulting party having regard to the conduct of the parties including an order for costs on an indemnity basis.
      
    • (11) Costs is in the course.
      

Orders Accordingly.

__________________________________________________________________

Jema Lawyers: Lawyer for the Plaintiffs/Applicants

B.S. Lai Lawyers: Lawyer for Defendants