Panduan v Harile [2022] PGNC 212; N9676 (24 February 2022)

N9676

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 228 OF 2021

BETWEEN:
MARA PANDUAN, Honde Clan Representative
First Plaintiff

AND:
JAMES TANGARI NANDE, Honde Clan Leader
Second Plaintiff

AND:
JOHN MARETO - Laulimi Clan Leader
Third Plaintiff

AND:
SABASTIAN PARAIDE - Laulimi Clan Representative
Fourth Plaintiff

AND:
CATHERINE KAVE - Honde Women Representative

Fifth Plaintiff

AND:

SCHOLASTICA VITOLO KAONA

Sixth Plaintiff

AND:

JOE WAWA HARILE - Deputy Chairperson, Honde Laulimi ILG

First Defendant`

AND:

ANTON LAVU, AUGUSTINE BULA & JOHN KAONA – Members of Dispute Settlement Authority

Second Defendant

-

AND:

HONDE LAULIMI LAND GROPU INCRPORATED

Third Defendant

AND:

BANK SOUTH PACIFIC LIMITED

Fourth Defendant

Kimbe: Numapo J

2022: 10^th, 18^th & 24^th February

CIVIL PRACTICE AND PROCEDURE – Application for an interim injunction (O 14 r 10 (3) & O 12 r 1) & s 155 (4) Constitution – Originating Summons - Declaratory Orders – Legitimacy of Incorporated Land Group (ILG) – Term of Office for Controlling Body - Elections of Members & Meetings.

Counsel:

Mr D. Kari, for the Plaintiffs

Ms E. Waiwai, for the First Second & Third Defendants

DECISION

24^th February, 2022

1. NUMAPO J: This is a ruling after the substantive hearing of the matter. The plaintiffs sought and were granted an interim injunction on the 20^th May 2021 pursuant to Order 14 Rule 10 (1) (3) and Order 12 Rule 1 of the National Court Rules (NCR) and section 155 (4) of the Constitution. The interim orders restrained the First, Second and Third Defendants, their servants, agents and any other persons from approaching the Bank South Pacific Limited (BSP) and conducting transactions from account number 1000826776 held under the name of Honde Laulimi Incorporated Land Group and furthermore, an interim order restraining BSP from doing any banking transactions especially withdrawal of funds from the said account until the substantive determination of the matter.

2. On the 15^th October 2021 the parties were directed to file and serve their affidavits they wish to rely on for the substantive hearing including giving of appropriate notices under sections 34 and 35 of the Evidence Act. On the 12^th November 2021, Counsel representing the defendants Ms Waiwai informed the Court that she was served late and was not able to file her affidavits in response on time and sought further adjournment. Matter was then adjourned to the 19^th November 2021 to allow the defence to file its affidavits. All affidavits were filed including the parties’ respective submissions and the hearing proceeded by way of affidavits as agreed to by Counsels. Decision was reserved and the matter adjourned generally to the registry.

3. In the meantime, the defendants’ filed a notice of motion on the 21^st December 2021 seeking to have the matter made returnable for inter-partes hearing and to set aside the ex parte order issued on the 20^th May 2021. The application was refused as I find it misconceived and an abuse of process given that the substantive hearing on the matter has been completed awaiting ruling hence, there is no utility in dealing with the interlocutory application as it will not serve any useful purpose.

4. Plaintiffs sought a number of substantive relief in the form of declaratory orders in its Originating Summons pursuant to Order 12 Rule 1 of the NCR and section 155 (4) of the Constitution.

1. ISSUE
   

5. The issue is: ‘Whether the defendants are properly appointed to control and manage the affairs of Honde Laulimi ILG’?

2. BACKGROUND
   

(i) Plaintiffs’ Claim

6. The Plaintiffs claimed that the defendants have been in office since mid-2012 and there has not been any Annual General Meeting (AGM) held and no election was conducted to elect the new members of the Controlling Body and the Dispute Settlement Authority despite numerous requests from the ILG clan members of the Honde and Laulimi Land Group Incorporated to hold an AGM.

7. The late Philip Mautu Kura assumed the role of Chairman of Honde Laulimi ILG after the death of Kevin Vitolo and together with the defendants have been withdrawing money from the ILG BSP bank account no. 1000826776 and personally benefitting from it.

8. Since October of 2014, concerns were raised with regards to the manner in which funds held under Honde Laulimi ILG were being distributed to the clan members with the office bearers taking most of the money for themselves whenever payments are made into the account by New Britain Palm Oil Limited (NBPOL) for the fresh fruit bunch and the land rentals. Court proceedings styled as; OS No. 205 0f 2014: Peter Meta & Ors –v- Luke Ulul & Ors was instituted and a Consent Order was issued for the fair distribution of the monies which is still in force to this day and has not been set aside by any subsequent orders. However, the terms of the Order have not been complied with and the defendants continued to withdraw funds and apply them to their own personal use. The other clan members are not receiving any benefits from it. There is no transparency and accountability in the use of the funds.

9. The current office holders re-registered the Honde Laulimi ILG without a proper election been conducted and legitimized their current positions in November of 2015 and obtained an ILG Certificate. All these were done without the consent and endorsement of the other clan members.

(ii) Defendants’ Response

10. Defendants contended that Honde Laulimi ILG is properly established and was issued a Certificate by the Registrar of ILG in May 2011 and therefore, the defendants are the legitimate members of the Controlling Body and members of the Dispute Settlement Authority respectively.

11. Defendants’ premised their argument on the ILG Certificate in that, a certificate dated 27^th November 2015 (ILG Certificate No. 351) issued by the Department of Lands and Physical Planning (DLPP) supersedes the previous ILG certificate issued on the 07^th May 2021 that legitimized the current Controlling Body of Honde Laulimi ILG. This came as a result of the amendment made to the Incorporated Land Group (ILG) Act in 2009. Land Groups were required to apply for registration under the new amendment and to be issued a certificate to be recognized as an ILG. Defendants on behalf of Honde Laulimi ILG lodged an application to the Registrar of Land Groups at DLPP and was issued a certificate which was subsequently gazetted as Gazettal No. G641 in the Gazettal Notice.

C. FINDINGS

12. It seems the dispute started in 2012 when the then Chairman of Honde Laulimi ILG Kevin Vitolo passed away. Late Philip Mautu then took over and became the Chairman with the first defendant Joe Wawa Harile as his deputy and the other defendants as members. Whether or not the changes were done with the prior consent and approval of the other clan members is not known but what became obvious to me is that there was no election held to appoint the late Philip Mautu and the defendants into office after Kevin Vitolo passed away. Since the passing of Philip Mautu, no election was held to appoint a new Chairman whilst the First Defendant Joe Wawa Harile in his capacity as Deputy Chairman and other defendants continued to remain in office as members of the Controlling Body.

13. It became apparent that; firstly, no election was held to lawfully elect the defendants into office as the Controlling Body of the Honde Laulimi ILG after the deaths of Kevin Vitolo and Philip Mautu secondly, that the defendants have been in office since 2012, a period of nine (9) years, which is in breach of the Honde Laulimi ILG’s constitution and thirdly, that no financial report has been presented by the Management Committee.

14. Section 8 of the Honde Laulimi ILG constitution states:

(1) The committee members are allowed three (3) years and may seek re-election in the third year for a second term of office.

(2) The committee members are only allowed to serve two (2) terms in the office but subject to good governance and in compliance to the Code of Conduct as stipulated under Section 14B (3) and Schedule 6 of the ILG Act 2009 as amended. (Emphasis mine).

15. If there is any truth in the assertion made that the defendants came into office in 2012 than it is clear to me that they have well and truly overstayed their mandatory terms of office required by the constitution under Section 8 (1) and (2).

16. The requirement to hold an AGM is stipulated under Section 10 of the constitution. It states:

10.1 Timing

(1) The group shall in each year hold a general meeting as its annual general meeting in addition to any other meetings in that year, and shall specify the meeting as such in the notices calling it.

10.4 Presentation of Reports

(1) It is required that the Management Committee must present all Financial Statements to the members at the Annual General Meeting. (Emphasis mine).

17. All in all, I find firstly, that there was no election held to elect the defendants into office as members of the Controlling Body and the Dispute Settlement Authority respectively, and secondly, that the defendants have gone past three sets of their three year term (even if they were properly elected into office). Taking all these into considerations, it became clear to me that the defendants were holding office illegally and therefore must vacate their respective positions and allow for an AGM to be held to elect the new members of the Controlling Body and the Dispute Settlement Authority.

E. RULING

18. I make the following Orders:

1. The defendants including the late Philip Mautu were not duly elected as members of the Controlling Body and the Dispute Settlement Authority of the Honde Laulimi ILG and therefore, do not have the authority to conduct any business including financial transactions or make any representation for and on behalf of the Honde Laulimi ILG.
   
2. The ILG Certificate Registration No. 351 (undated and unsigned) including a similar copy of the certificate signed on the 27^th November 2015 naming the defendants as members of the Controlling Body and Dispute Settlement Committee respectively is defective and void and of no legal effect.
   
3. I order the following to be done:
   

(a) An Annual General Meeting (AGM) is to be held within 14 days from the date of this Order to elect the new members of the Controlling Body and the Dispute Settlement Authority of the Honde Laulimi ILG to be supervised by the Advisor, Lands WNB Provincial Government and members of the Provincial Land Dispute Committee.

(b) The signatories of the Honde Laulimi ILG are to be changed and new members of the Controlling Body, once elected following the AGM, to become signatories to the Honde Laulimi ILG bank account no. 1000826776 held with BSP, Kimbe.

(c) Monies paid into the Honde Laulimi ILG bank account no. 1000826776 for the fresh fruits bunch and the land rentals by NBPOL to be distributed as follows:

• (i) 40 per cent to Honde Clan
• (ii) 40 per cent to Laulimi Clan, and
• (iii) 20 per cent for ILG Administration and Management costs.
  

(d) The interim injunctions dated 20^th May 2021 issued against the defendants, their servants, agents or other third parties not to conduct any transactions including withdrawal of funds held at BSP account no. 1000826776 under Honde Laulimi ILG is to remain in force until the AGM is concluded and the new members of the Controlling Body are elected into office.

(e) Consent Orders issued by the Court on the 07^th October 2014 in OS No. 205 of 2014 has not been complied with and therefore, it is set aside and discharged.

Costs be in the cause.

Orders accordingly.
________________________________________________________________
Public Solicitor: Lawyer for the Plaintiffs
Emam Lawyers: Lawyer for the Defendants