N11312
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) 322 TO 326 OF 2019 AND 294 OF 2022

THE STATE

V

TOM MAIP and MCQUEENIE MAIP WAIA

MT HAGEN: BERRIGAN J
04, 07, 08, 10, 11, 14, 15 AND 18 OCTOBER 2024;16 MAY 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – CONSPIRACY TO DEFRAUD - FORGERY – UTTERING - Sections 407(1)(b), 462(1), 463(2), Criminal Code – Elements of Offences – Evidence failed to establish alleged offences beyond reasonable doubt – Not guilty. 

Cases cited
Roland Tom v The State (2019) SC1833
Kane v The State (2022) SC2201
Rolyn Yugari v The State (2018) SC169
Karapen v The State (2022) SC2333
State v Kingsley (No 3) (2024) N10916 
State v Kissam (2025) N11205

Counsel
Ms H Roalakona for the State 
Mr I Tembi for the accused  

DECISION ON VERDICT

1.	BERRIGAN J:  The accused, Tom Maip and McQueenie Maip Waia, are jointly charged with conspiracy to defraud, forgery, and uttering, contrary to s407(1)(b), s462(1) and s463(2), Criminal Code, respectively.

2.	In particular, it is alleged on Count 1 that between 1 October 2011 and 31 October 2011 the accused conspired with each other to defraud the financial members of Palimp Limited and Moge Nambuga Milip Limited by deceitful and fraudulent means in appointing McQueenie Maip Waia as the sole director of Palimp Limited without the knowledge of the financial members of Palimp Limited. Furthermore, on Counts 2 and 3, that they forged the name and signature of one Thomas Ulg as the director of Palimp Limited on Form 16 – Notice of Change of Directors and Particulars of Directors of the Companies Act, 1997 dated 26 October 2011 and then uttered the said document.

3.	The State alleged that in 1987, the Moge Nambuga Milimb Investment Pty Ltd (MNMIL) was registered with the Investment Promotion Authority (IPA). It was set up as the parent company for the Moge Nambuga Tribe made up of 10 subsidiary companies to be the shareholders of MNMIL. The main objective of this arrangement was for the distribution of benefits derived from properties or assets of MNMIL. To be a member of MNMIL members contributed through the subsidiary companies which were made up of the 10 sub-clans of MNMIL. Each clan member contributed K50 to purchase a share in the sub-clan companies. These shares were not open to others who were not blood members of the Moge Nambuga tribe. Palimp Limited is one of the shareholding companies of MNMIL being incorporated on 26 November 1993. 

4.	On 26 October 2011 McQueenie Waia was appointed director of Palimp Ltd taking the place of Thomas Ulg. By virtue of the same document he replaced Tom Maip as the other director making himself the sole director. 

5.	Tom Maip, knowing that Palimp Limited was intended only for members of the Palimp clan conspired with McQueenie Maip Waia to appoint him as a director of Palimp Ltd by deceitful means in that there was no meeting resolution resolving to make the appointment, which was made without the knowledge of the financial members of Palimp Ltd. Further, the accused forged, then uttered, the Form 16 of the Companies Act – Notice of Change of Directors and Particulars of Directors in that it was submitted by Tom Maip bearing the name and signature of one Thomas Ulg as director when records show that there is no member of Palimp Limited who goes by the name of Thomas Ulg. 

FINDINGS OF FACT  

6.	There is no dispute and I find that Moge Nambuga Milimb Investment Pty Limited was incorporated on 11 December 1987 (Exhibit P2, P3). The list of persons who consented to be directors, and the statutory declaration to that effect made by Thomas Ninji, were Thomas Ninji, Bora Pamunda, William Pora, Leo Laga, Raphael Bakri and Cletus Nigints: Exhibits P4, P5. 

7.	On 1 September 1998 it changed its name to Moge Nambuga Milimb Investment Limited (MNMIL). According to its extract of 7 September 2017 its directors included three directors appointed in 1987, namely Raphael Bakri, Leo Laka and Cletus Nigints, together with the following appointed 3 July 1997: Kiau Kaipa, Jacob Kop, Kerua Mak, Thomas Maniti, John Anis Napil, John Neville, Palawa Ninji, Paulus Palme, Thomas Pepna and Raphael Raim. As of 3 July 1997 its secretary was Akai Kup Ogut.  

8.	Its shareholders as at 7 September 2017 were: Kulgmump Ltd, Kund Mulgmulg Ltd, Pangump Wipmul Ltd, Palimp Ltd, Eltimp Ltd, Gumas Wanmul Ltd, Wilya Ltd and Kundump Ltd, all appointed 26 November 1993, together with Kulgump NGA Ltd, Wipmul Ltd and Wanmul Ltd, appointed 23 December 2003: P6. 

9.	According to MNMIL’s Articles of Association of 21 October 1987, Exhibit P20:

Article 2: The directors may refuse to transfer a share in their absolute discretion and without assigning any reason thereto.
Article 3: The number of directors shall be not less than two or more then/first directors shall be Thomas Ninji, Bora Pamunda, William Pora, Leo Laga, Raphael Bakri and Cletus Nigints. 
Article 4: Directors are not required to hold any shares in the company.
Article 5: The company is a proprietory company and accordingly shall: (i) restrict the right to transfer its shares. (ii) limit to no more than fifty (50) the number of its members (counting joint holders of shares one person and not counting any person in the employment of the company or of its subsidiary, was and thereafter has continued to be a member of the company.) (iii) prohibit any invitation to the Public to subscribe for shares or debentures of the company and (iv) prohibit any invitation to the public to deposit money with the company for fixed periods or payable to call, whether bearing or non bearing interest.

10.	A copy of the lease was not produced but it is not in dispute that MNMIL obtained a State lease over property located at section 17, lot 2, Mt Hagen. This portion of land was leased out to Shell (PNG) Limited in 1990, and thereafter to Interoil Limited and Puma, to operate a service station, which has been operating on the site for most of the years since. 

11.	Palimp Pty Ltd was incorporated six years after MNMIL on 26 November 1993. It changed its name to Palimp Ltd on 2 September 1998: Exhibits P7, P8.  It appears, or at least it is not in dispute, that the ten other companies referred to above holding shares in MNMIL were incorporated at or about this time. 

12.	According to forms lodged with the IPA, Tom Maip and Thomas Ugl consented to be directors of Palimp Ltd on 16 November 1993: P10.  The person who signed above the typed words “Thomas Ugl” signed “Paul Ugl”. One share each was allotted to Tom Maip and Thomas Ulg (cf Ugl) on 14 December 1993: P9. Tom Maip was appointed secretary on 26 November 1993 and its directors were listed as Tom Maip and Thomas Ulg in the document lodged with the IPA 20 December 1993: P11.  

13.	No documentation was produced but it appears that in or about 2007 McQueenie Maip Waia’s company, Eagle Fuel Distributors Ltd, was engaged by Interoil to run the service station located at section 17, lot 2.

14.	On 4 November 2011 a Form 16 (Notice of Change of Directors and Particulars of Directors) for Palimp Ltd was filed with the IPA replacing both Thomas Ulg and Tom Maip as directors with McQueenie Maip Wai as sole director as of 26 October 2011: Ex P 13. It is this document that is the subject of the charges and is purportedly signed by Tom Maip and Thomas Ulg on 26 October 2011 and lodged with the IPA by Tom Maip. The person who signed above the typed name “Thomas Ulg”, signed “Ugl”. 

15.	On the same day a Form 13 (Notice of Change of Shareholder (Share Transfer)) for Palimp Ltd was lodged with the IPA by Thomas Ulg stating that the two shares held in the company were transferred to McQueenie Maip Waia: P 14. It was purportedly signed by Thomas Ulg. The person who signed above that name signed “Ugl”. 

16.	On 28 August 2017 a Form 16 (Notice of Change of Directors and Particulars of Directors) for Palimp Ltd was lodged with the IPA by McQueenie Maip Waia appointing Tom Maip as fellow director as of 12 July 2018: Exhibit P 15.  On the same day, 28 August 2017, a Form 15 (Consent and Certificate of Director (Existing Company) for Palimp Ltd signed by Tom Maip consenting to act as director as of 12 July 2018 was lodged with the IPA by McQueenie Maip Waia: P 16.

17.	On the same day a Form 13 (Notice of Change of Shareholder (Share Transfer) for Palimp Ltd was lodged by McQueenie Waia stating that one ordinary share was transferred by him to Tom Maip on 12 July 2018 for cash: P17.  

18.	As above, each of P15, P16 and P17 refer to events occurring in July 2018. It appears to me from the IPA stamps and associated endorsements of those stamps and the nature of the forms themselves that they were filed on the same day, and that according to the stamps, that was on 28 August 2017 and not 2018: applying s 61, Evidence Act. 

19.	According to minutes lodged with the Registrar of Companies on 14 September 2018, a meeting was conducted on 28 July 2018 at which McQueenie Maip Wai and Tom Maip were present and at which it was resolved that McQueenie Maip Waia being the sole director and shareholder appointed Tom Maip as director and shareholder of Palimp Ltd with an allocation of 10 % shares: P18.  

20.	According to a company extract as at 25 March 2019 its directors were Tom Maip, appointed 12 July 2018, Alois Ruing Malip, appointed 17 January 2019, and McQueenie Maip Waia, appointed 26 October 2011. Tom Maip was its secretary: Ex P 12. 

STATE’S CASE

21.	Jacob Kop, 64 years old, is a leader and was formerly counsellor from 1997 to 2012. He is a member of the Wilya subclan of the Moge Nambuga Milip tribe. He is the current chairman and director of MNMIL, appointed 1997. He is a director and shareholder of Wilya Ltd.  

22.	He says that the Moge Nambuga Milimp Clan formed the company in 1987 to do business. It is comprised of the ten groups, clans or sub-clans, belonging to the Moge Nambuga Milimp Clan. The tribe comprises about 8000 people but only 486 people from the groups made up the company. According to the Articles of Association each person contributed K50 each as shareholders. No one could buy shares and shares could not be sold to any outsider. A person who was not one of the 486 contributors cannot become a contributor or shareholder of the company. When a shareholder dies then the first born takes over the shares belonging to his father. A daughter has no rights. If a mother was one of the original contributors, however, she could pass her share to her children. 

23.	The company started a business with Shell PNG to build a station and sell fuel for 20 years pursuant to an agreement made by the original six directors, of which only Cletus Nigints survives.  In 1994 Shell took over the station and closed it after the manager, Jessie John, ran up a debt of K500,000 to Shell and a further K300,000 to BSP. When the committee members found out they met at the Highlander Hotel, including Tom Maip, who is from Palimp Ltd. They agreed to put a new proposal to Shell which agreed and reopened the station. Interoil took over from Shell in 2009. In 2011 he sought to obtain the title from Interoil but it could not locate it. In September 2017 he sought the title from Puma, which refused on the basis that a faction of directors had objected to its release: Exhibit P21. 

24.	Searches revealed that McQueenie Maip Waia had taken over MNMIL. He and fellow committee members reported the matter to police in Mt Hagen CID in September 2017 and then to the National Fraud and Anti-Corruption Directorate in Port Moresby in 2018. 

25.	McQueenie Maip Waia is Tom Maip’s nephew. He is not part of the Moge Nambuga Milimp tribe. He is not a member of any of the subclans. He was not a contributor of Palimp Ltd at any time. 

26.	There was no change of directors. For that to happen there had to be a meeting of all contributors or shareholders of Palimp Ltd and give consent and inform the parent company. There was no meeting resolution to invite McQueenie Maip Waia to come in. 

27.	He identified a letter dated 3 February 2009 written to him as chairman of MNMIL under which three directors, Thomas Roika, Bora Pamunda and Jessie John, submitted the names of financial members for the purpose of dividend payment: Exhibit P22. Attached to the letter is the list of names submitted for each of Palimp, Gumash, Wanmul, Kundmugmug, Wipmul, Moge Pangumb, Kundump, Moge Eltimb, Willya and Kugmumb villages or clans as at 1987. There are 57 names on Palimp’s list. No 1 is Bora Bamunda, No 2 is Tom Maip, No 3 is Paul Ugl Ninji.  The latter’s sons, Nelson Ulg Ninji (No 17), Joseph Ulg Ningi (No 40) and Tomson Ulg Ninji (50) (deceased in 1996) are also listed. It does not contain the name Thomas Ulg.  

28.	He has been a leader for a long time and there is no one in their tribe called Thomas Ulg.  He only knows of one Paul Ugl.

29.	Dividends have been paid only twice, once in 2009 and once on 1 April 2023 at which time they conducted an AGM, shareholders from the ten subclans came. 

30.	In cross-examination he agreed that he was appointed Chairman of MNMIL by the representatives of the ten shareholding companies, who each send one representative to appoint chairman, director and company secretary of MNMIL. MNMIL was incorporated in 1987 and Palimp Ltd and the other shareholding companies not until several years later in 1993. The ten shareholding companies have no business, no bank account. They are established to channel dividends to the contributors in each clan from MNMIL.  

31.	McQueenie Maip Waia is a blood member of the Moge Nambuga Milimb tribe. He is the biological son of the biological sister of Tom Maip. Tom Maip is from the Palimp clan of the Moge Nambuga Tribe. But McQueenie is “married out”. His mother married another tribe. If he had invested K50 at the very beginning they can accept it but he did not and the company only allows Moge Nambuga Milimb clan members and he is from another tribe, Mugwi Kuipu, and he had no right to come and take their shares.

32.	After finding out that McQueenie Maip Waia was the sole director and shareholder of Palimp Ltd he obtained a restraining order at the National Court in OS 502 of 2018, MNMIL, Palimp Ltd, and Palawa Ninji against Tom Maip and McQueenie Maip Waia: Exhibit D1. He is aware that the orders were overturned on appeal: Maip v Moge Nambuga Milimb Investment Ltd (2020) SC1908. 

33.	Cletus Nigints, 68 years old, was one of the initial contributors and first directors of MNMIL. The company was established to operate a business. They had given up their land to the State. They mobilised and formed the company and were awarded the land at section 17 allotment 2 by the State. They asked all members of the tribe to register K50, across the board and they did not want anyone to contribute more to claim ownership of the company. They established 10 smaller companies for the purpose of channelling dividends to the contributors. He is from Eltimp subclan and was appointed a director in MNMIL by the contributors. He knows most of the directors of the other subsidiary clans. He knows Tom Maip. He is from Palimp. He does not know Thomas Ugl. He knows Paul Ugl Ningi. He knows McQueenie Maip Waia. He was operating the service station. He is not a member of the tribe. He is an outsider. When they contributed the first time they agreed only to have Moge Nambuga Milimb tribesmen. They did not give authority to anyone, even himself, to bring in outsiders to be a director. When they found out they met and reported it to police. 

34.	He identified a photograph of a man he recognised as Paul Ugl: Exhibit D2. He knew him for many years, since they started the company. They used to go around together and get contributions from shareholders. He is from the Palimp tribe, son of Ninji.  

35.	Joseph Ugl Ninji, 49 years old, from Palimp Village, educated to Grade 10. He is one of the original contributors to Palimp Ltd, together with his father, and two other brothers. His father’s name is Paul Ugl Ninji. His father died on 10 July 2014. His father and Tom Maip were Palimp Ltd’s first directors. To change the directors there has to be a meeting of MNMIL and Palimp Ltd. For Palimp Ltd, all 57 shareholders, have to be present to be aware of the change of director. His father never went by any name other than Paul Ugl Ninji. When he died in 2014 it should have been him to take over his share because he is the next of kin. His father was an illiterate, village man. He knows McQueenie Maip Waia. He is like an uncle to them. He was not made aware that McQueenie had been made a director and he should have been told. He identified the man in the photo, D2, as his father, Paul Ugl Ninji. He should have taken over the shares when his father died and he was next to his father as a director. Thomas Ugl is not his father and there is no one in the clan known as Thomas Ugl. 

36.	He did not agree that Paul Ugl Ningi’s name is not on the company extract of Palimp. All the shareholders know that Paul Ugl Ninji is director of Palimp not Thomas Ugl. The signature under Thomas Ugl’s name on P10 is Paul Ugl Ninji’s signature. There were about 1000 plus in Palimp and he is one of the leaders in the community. 

37.	Melkeo Win, 42 years old, is a member of Palimp clan. He is educated to Grade 6 and a buai seller at the market. He became a member of Palimp Ltd through his mother, who is from Chimbu. She was an original contributor. MNMIL is their big company covering all of the ten clans and Palimp is where the clan members contributed and made their share.  He was aware of the directors. Bora Pamunda was the director from Palimp. He was in Mt Hagen in 2011. He knew McQueenie Maip Waia. He did not know he was made a director of Palimp Ltd. He did not know Thomas Ugl. He disagreed that his name was not on the Palimp Ltd extract. It was on the list of contributors. He did not agree that the directors in Palimp from 1993 to 2011 were Tom Maip and Thomas Ulg. He does not know Thomas Ulg. He knows Tom Maip and Paul Ulg were the directors of Palimp Ltd. 

38.	Richard Wakupa, 38, from Palimp. He became a financial member when his father died, when he was six months old, and his widow mother married his father’s brother.  He identified his name on the list of contributors, P22. In 2011 the directors of Palimp were Tom Maip and Paul Ugl. Paul Ugl was the director of Palimp Ltd. He does not know Thomas Ugl. He was not aware that there was a change of directors and was never consulted. He has received two dividends, once last year and another date he forgot. He knows McQueenie Maip Waia. He is Tom’s uncle. Tom’s sister is married to Muiku Kulka. McQueenie is also his uncle. He has known him a long time. It was not right for him to become director of Palimp. As a shareholder of MNMIL he says no. He agreed that he contributed K50 to form MNMIL and not Palimp Ltd. The purpose of the companies was to channel dividends from MNMIL to financial contributors. But he received dividends from the directors of MNMIL and not the directors of Palimp Ltd. 

39.	Abraham John, 52, is No 34 on the list of shareholders of Palimp Ltd, Ex P 22. He is a shareholder of Palimp Ltd. Their fathers made them shareholders to the company with K50. The directors were Tom Maip and Paul Ugl. He was in Mt Hagen in 2011 and was not aware of any change of directors for Palimp. McQueenie Maip Waia is not a shareholder of Palimp Ltd. He does not know Thomas Ulg. He received a dividend last year, as a shareholder of Palimp Ltd. It was paid by MNMIL not directors of Palimp Ltd. McQueenie Maip Waia is Tom Maip’s uncle.  

40.	Sergeant Luke Upa, NFACD, recalled that the matter was reported by Jacob Kop in September 2018. He conducted searches at IPA. According to his investigation there was no person by the name Thomas Ulg Ninji. He does not recall retrieving the resolution to appoint McQueenie Maip Waia director of Palimp Ltd dated 26 October 2011, which was later admitted as Exhibit D5, stating that there was a meeting between Thomas Joe Ulg, Tom Maip and McQueenie Maip Waia at which it was resolved by Tomas Ulg and Tom Maip to appoint McQueenie Maip Waia as the new director and further transferring both shares to McQueenie was purportedly signed by Thomas Ulg (signed Ugl). 

DEFENCE CASE

41.	Tom Maip, 75 years old, is from Palimp and a member of the Moge Nambuga Milimb tribe. MNMIL is a business group company. He is part of the company. He is a director and shareholder of Palimp Ltd. He was a founding shareholder and director with others. They formed it in 1993 and the directors are himself, Tom Maip and Thomas Ulg, his cousin brother. Thomas Ulg has many names: Paul Ninji, Paul Ulg, but his real name is Thomas Ulg. Thomas Ulg died in about 2018. 

42.	McQueenie is his biological uncle or nephew and like a son to him. He raised him at Palimp. When he came of age he moved back to his father’s land but his house is still there with him. McQueenie contributes heavily to community obligations, funerals, bride price, compensation in Palimp and all of Palimp is aware of that. 

43.	The company was not functioning property. It had no office, no staff. He never received any benefits from MNMIL from 1993 to 2011. Jacob Kop used it as his own private business. Seven or eight of his peers passed away and he was confused. Only he and his brother Thomas Ulg were surviving. He and Thomas Ulg went to see McQueenie and asked him to help them. They wanted to give their directorship and shares to McQueenie as he knew the way to do things. He told them to go back and think about it properly. They gave everything to him. They told him, we are not educated people and all our peers have passed on and we need to benefit before we die. They agreed in writing and he and Thomas signed P13 (Notice of Change of Directors and Particulars of Directors). McQueenie had the document as they do not read or write.  A few months later they went down to Moresby to see a person named Paul. They paid K50 and were given a receipt. He identified Thomas Ulg in the photo, D2. He also identified a photo of himself, Thomas Ninji and McQueenie Maip Waia taken by McQueenie’s wife at the time they signed P13: Exhibit D3. They did not receive any benefits from the company after they returned. McQueenie looked after them with his own money. 

44.	Under cross-examination he agreed that MNMIL was established to benefit all Moge Nambuga Milimb tribe members. It was for Moges not Jiggas. He did not agree that if he died his share would go to his son. He could give it to anybody who looked after him. They did not say at the time of formation that no outsider should have a shareholding in MNMIL. Thomson Ulg Ninji is Thomas Ugl’s first son, who has passed away. He agreed that the people listed on P22 had a right to know what happens with Palimp Ltd. He was not sure what P10 was but he recognised the names and signatures of himself and Thomas Ulg. He also recognised the names and signatures of himself and Thomas Ulg on P13. McQueenie took himself and Thomas Ulg to Port Moresby to take the papers to the company office. His son, Nelson Maip, and all his family knew they were going to Port Moresby.  He did not know if others knew. He and Thomas were the bosses of Palimp ltd.  He did not tell financial contributors of Palimp Ltd at the time he gave directorship to McQueenie. The company had no office, nothing, so he used his powers with Thomas Ulg to do that. If they had received monies or benefits they would have told the contributors but there was nothing. 2009 was the only time that MNMIL paid dividends to contributors when Interoil gave some payments. McQueenie did not buy his shares, he gave them to McQueenie. He was the boss so he gave them to his uncle. He denied that Thomas Ulg did not exist or that was not his signature on P13. 

45.	McQueenie Maip Waia, 53 years old, comes from mixed blood line of Dei Counsel, Rambi in Dei Counsel and Moge Malimb in Hagen Central on his paternal side and Moge Malimb Tribe on his maternal side. He has a house and his parents gave him ceremonial land for the entire Moge Nambuga Milimb tribe, both of which are in Palimp village. He was born and raised in Palimp village. He first heard about MNMIL in 2007 when he was interviewed by Interoil for the dealership of the service station. He has been operating the service station since July 2008. 

46.	In June or July 2011 his uncle Tom Maip and another uncle, who he knows as Palimp Ulg came to see him at the service station. Tom told him that they have an issue with their company MNMIL and that both of them are in company called Palimp Ltd. He and Ugl went around together collecting monies to form MNMIL but since then they have never received any money. They can see that the company is successfully operating and that money is coming in but where money goes they have no idea. They trusted him because he was their uncle, an educated, community leader and a successful businessman and so they wanted to give him their shares and directorship to Palimp Ltd at no cost, to represent them and the little people who contributed to MNMIL to see if they could benefit from the revenue coming. They told him that there were nine other companies apart from Palimp Ltd and that most of the shareholders and directors were the same age as them and most had died. They were among 2, 3 or 4 that were left and they wanted to see some benefits for Palimp Ltd before they died.  He told them he had to think about. He was busy running his own business. But in his culture if the uncles ask something of him and are upset with him then it will affect his marriage, family, prosperity, health, life. He had no option but to make his uncles happy.  He went to IPA in Port Moresby. At the time he had no idea how to transfer shares or directorship and so sought advice from the officer at the counter, Paul Seboton. He obtained extracts for Palimp Ltd and MNMIL. He produced an extract for Palimp Ltd as at 10 August 2011 showing Tom Maip and Thomas Ulg as the only shareholders and directors: Exhibit D4. He obtained an extract for MNMIL and saw that there were about 20,000 shares distributed amongst ten shareholders, including Palimp Ltd. He realised that he was doing business on land owned by MNMIL. He came back to Hagen and was obliged to help his uncles and take up their fight. They had not benefited for 30 years and he knew that the rent paid for the station was a lot. 

47.	On 25 October 2011 his uncles came around and told his wife to tell him to get the documentation ready for the following day. He had no ideas about the forms but the IPA officer had given him a soft copy of the forms and told him what to do. He identified P13 (Notice of change of directors) and inserted the names into the document, which was signed by Tom Maip and Thomas Ulg. His wife was also present at the time. He identified P14, notice of change of shareholders, which was also completed by him and signed by Thomas Ulg. He explained to them what they were signing and that if they sign the documents they will not longer have the shares and will no longer be a director and that his name will be registered. He never paid anything to either of them for the shareholdings or directorships. He took on their grievances. It was cultural and he realised that all of the shareholders under MNMIL, under the ten respective companies, had been missing out on rent he was paying to Interoil he felt that something had to be done. They told him stories that they paid money but there were no other names listed at the IPA so he thought they were the only directors and shareholders. He studied the Companies Act 1997 to see how shares were transferred and directors appointed to make sure he understood and saw that shares to a company was private property, which means that whoever holds these things holds those shares, but on the extract there was only Thomas Ulg and Tom Maip. He understood that they were the rightful legal authority. He took them down to Moresby and told them to go and see Paul Seboton at IPA and he registered them and gave them receipts. He identified himself in the photo, D3. He identified D5, the minutes of the meeting. 

48.	He and Alios Maip Ruing are the current directors of Palimp Ltd and its shareholders are himself and Tom Maip. He does not have shares in MNMIL as an individual but through his company Palimp Ltd but Palimp has since been removed from the MNMIL by Jacob Kop without his consent when the online system changed on 23.11.23 and companies had to reregister with the IPA: Certificate of Good Standing – Long Form for MNMIL dated 6 November 2023, D7. He complained to the IPA, in response to which the Registrar of Companies responded on 30 January 2024, Exhibit D6.

49.	The directors of MNMIL found out about his directorship of Palimp Ltd when he and his group of shareholders from 6 other companies gave a letter dated 21.12.18 as per the Companies Act requesting them to conduct a shareholders meeting and identified several agenda items, including meeting minutes and resolutions of MNMIL for the last 27 years, financial reports for the last 7 years, copy of the contract or the lease agreement between MNMIL and Interoil Ltd and clarification of the land title status of s 17, allotment 2, the land rightfully owned by MNMIL which ten shareholding companies have an interest in. At their request the IPA attended the shareholder meeting but the directors failed to attend and instead commenced OS 502 of 2018. 

50.	Of course it was the initial idea to distribute any income from MNMIL to the members of the subclans who originally contributed through the ten companies but that has never happened. The companies have their own directors and shareholders and it is their duty to identify financial contributors according to their list. He did his best to find out who the financial contributors were for MNMIL through searches at IPA but he never found any list or Articles of Association. The only legitimate document he ever found was the extract on 10.8.11 and it only identified Thomas Ulg and Tom Maip and he believed that they were the only shareholders and directors and he could not turn them down. He was not interested but they came and the only reason he accepted is because they are his uncles and will curse him.

51.	He changed the directorship to reinstate Tom Maip because he was staying and working at the station and Thomas Ulg had passed on and he felt for him that it is better he is also in the company and if anything happens he will be a beneficiary as a registered shareholder because what is there is his rights. He prepared the resolution, D5. It is possible it was not lodged with the IPA. 

52.	He agreed that in order to have a say in rental monies paid to MNMIL he needed to be a director of one of shareholding companies of which he became a director in 2011. He agreed that he then extended his presence in 10 other shareholding companies. They are in the same boat and have a common interest. He is not interested in any money that comes from MNMIL. The only thing he is interested in is his uncles who are very old. He has his own businesses which are very lucrative. He has never paid anything to Tom Maip because Palimp Ltd was not making money. If MNMIL had then 100% it would go to Tom Maip.

53.	Kana Waia, is McQueenie Maip Waia’s wife. She was in the office on 26 November 2011. Present were herself, Tom, Lapun Ulg, and McQueenie. Most of the discussion was in tok ples but from old Tom’s usual visits she was aware of what they were talking about. She took the photo D3. On that day McQueenie arranged all the papers and explained in local dialect and he told his uncles if you sign this paper, all your rights and authority you will transfer to me and they agreed. Uncle Tom cried and said I am growing old and I want you to carry this company forward so we are giving you with our consent and full blessings and we have nothing to say. Both men signed. Palimp is like her village. She knows everyone there. They have a house, land. She does not know Paul Ugl Ninji.  She does not know any other names of Lapun Ulg. 

CONSIDERATION

54.	It appears that many years ago the Moge Nambuga Milimb tribe lost their land or at least some of it to the State for the development of what is now known as Mt Hagen. In 1987 they decided to form a company, now MNMIL. Contributions of K50 were called for from within the ten different villages or clans within the tribe and between 45 and 70 people subscribed in each case. Anyone could contribute at that stage, whether female or from another tribe. They applied for land and were granted a State lease over very valuable land in the centre of Mt Hagen. In 1993 ten companies representing the subclans or villages were incorporated and became shareholders in MNMIL with the intention that money earnt from MNMIL’s operation of the land would be distributed to the original contributors through their respective companies. Since 1990 the land has been leased by large fuel companies, like Shell, Interoil, and Puma and yet it appears that the original contributors have seen virtually no benefit. 

55.	In 2007 McQueenie Maip Waia’s company was engaged by Interoil to run the service station located on the land. A few years later he obtained total control of Palimp Ltd as sole shareholder and director. 

56.	McQueenie Maip Waia is a leader, an entrepreneur and an aspiring politician. He runs one of the most successful fuel businesses in the country and regardless of whether or not he finished it, began a Bachelor of Accounting many years ago in 1992. He was at pains to make clear the provisions applying under the Companies Act and I have no doubt that he was familiar with the Companies Act long before he took up the shares and directorship in Palimp Ltd in 2011.  

57.	The circumstances in which he acquired directorship of the company are clearly suspicious. There was no need for Mr Waia to obtain all of the shares in Palimp Ltd in order to manage it. He could simply have become a director. Nor was it necessary for him to become sole director. The effect of the changes were to give him total control and ownership of Palimp Ltd, a company which was one of only nine others in a company, MNMIL, which held a very valuable piece of real estate in the centre of Mt Hagen. He paid no consideration for the shares, which raises questions of its own as to the validity of transfer. If he was genuinely interested in finding out who the original contributors were from Palimp then it would have been an easy and obvious matter to ask people from within the village he says he grew up in and was a leader. On one view his conduct is made all the more suspicious by the fact that in 2017 (according to the IPA stamps) he reappointed Tom Maip as director and returned one of the company’s two shares to him and then appointed Alois Ruing Malip as a director in 2019. Here I note the anomalies in the dates of the various documents and IPA stamps.

58.	In addition, it appears to me that both Paul Ugl Ninji and Tom Maip are older, illiterate men from the village who might have been susceptible to his influence. 

59.	Whilst his evidence on the point was at times contradictory, and he referred to the company on one occasion as his, and emphasised the entitlements of a shareholder, Mr Waia made it clear several times that he appreciates that he owes the original contributors from Palimp a duty to distribute any monies paid to the company by MNMIL to them. He says he is not interested in the money himself. He is doing it for the people of Palimp. 

60.	The State and its witnesses have referred to MNMIL as the parent company of Palimp Ltd. MNMIL is not a parent company in any legal sense – it does not own a controlling interest in Palimp Ltd. But I understand why it might be regarded as a parent company by a lay witness. It is the company that earns the revenue that is meant to be shared with the original contributors from each of the villages or clans through the shareholding companies established in or about 1993.  That is really beside the point as far as the charges are concerned.

61.	The State have also submitted that Palimp Ltd is not a separate legal entity from MNMIL because it is a shareholder in MNMIL. That is misconceived. It is a shareholder in MNMIL but that does not alter the fact that it is a separate legal entity. It is also largely beside the point for our purposes.

62.	Nor is the Supreme Court decision necessarily determinative here. That decision concerned an appeal against a decision to issue an injunction and was decided on the limited evidence before it. The fact civil proceedings were time barred do not prevent criminal proceedings. The decision decides nothing about the state of mind of each of the accused with respect to the particular offences charged. But it does identify some of the complexities surrounding the question of trust.

63.	The question remains, however, whether the State has established the offences alleged against each of the accused beyond reasonable doubt. 

64.	In short, a conspiracy to defraud is an agreement between two or more persons to use dishonest means to deprive a person of property which is his or hers or to which he or she might be entitled or to put the property of that other person at risk, or to imperil some lawful right, interest, opportunity, or advantage of another person: Roland Tom v The State (2019) SC1833; Scott v Metropolitan Police Commissioner [1975] AC 819; Peters v The Queen (1998) 192 CLR 493 adopted and applied; Potape v The State (2015) SC1613 clarified; State v Kissam (2025) N11205. 

65.	Essentially it was the State’s case that the accused conspired to defraud the financial members of MNMIL and Palimp Ltd - by which I understand this to mean the original contributors - of the directorship of Palimp Ltd, by agreeing to use dishonest means, namely the forging of a notice of change in directors in Palimp Ltd in favour of McQueenie Maip Waia and furthermore, that they then put this agreement into action by forging the notice and uttering it to the IPA.

66.	To establish the offence of forgery contrary to s 460 of the Criminal Code the State must prove beyond reasonable doubt that the accused:

(a)	Made a false document or writing;
(b)	Knowing it to be false, and
(c)	With intent that it may in any way be used or acted on as genuine
i.	to the prejudice of a person; or
ii.	with intent that a person may, in the belief that it is genuine, be induced to do or refrain from doing any act.

See Kane v The State (2022) SC 2201; Rolyn Yugari v The State (2018) SC169; The State v Alex Tongayu (2021) N8810; Karapen v The State (2022) SC2333.

67.	It was the State’s case that the writing, namely the name and signature of Thomas Ulg as a director of Palimp Limited on Form 16 (Notice of Change of Directors and Particulars of Directors) dated 26 October 2011, was false because Thomas Ulg was never a director of Palimp Ltd and that in fact there was no such person. Or in other words that the document or writing purported to be made by a person who did not, in fact, exist for the purposes of s 459(2)(c), Criminal Code. 

68.	For the following reasons, however, the State have not excluded the possibility beyond reasonable doubt that Paul Ugl Ninji was also known by the name Thomas Ugl Ninji. 

69.	With respect to MNMIL the State’s exhibits show that Thomas Ninji was one of six founders of MNMIL and took a leading role in its formation in 1987. On the face of the documents filed with the IPA his name appears no less than six times on P4 and P5, and first amongst those others listed, including Cletus Nigints. 

70.	Neither Jacob Kop nor Cletus Nigints nor anyone else was asked to explain who this Thomas Ninji was and bearing in mind that Palimp village took a leading role in establishing MNMIL and that Ninji is, on the evidence of Cletus Nigints, a Palimp name it seems reasonable to infer Thomas Ninji was from Palimp. Yet that name does not appear on the list of original contributors from Palimp, P22. The first three names on the list are Bora Pamunda, Tom Maip and Paul Ugl Ninji, which is to be expected given that they took leading roles in establishing MNMIL.  

71.	It appears that Thomas Ninji was removed as a director from MNMIL in 1997 and replaced by Palawa Ninji who still holds shares in MNMIL in trust for Palimp clan: D7. Palawa Ninji was not called and there was no evidence from him or anyone else as to whom he took over from. As I understand it, however, he is from Palimp which again suggests that the person he took over from, Thomas Ninji, was also from Palimp.

72.	Having said that there is a Thomas Roika Ninji from Kundmugmug – perhaps that Thomas Ninji is him. It is not clear.  Although the person who signed as Thomas Roika on P22 has a definite signature whereas it appears to me that Thomas Ninji did not actually sign his name on P5.

73.	Putting the matter of Thomas Ninji in MNMIL aside, and critically for the purposes of this case, the State’s principal assertion that the records establish that a person Thomas Ulg was never part of Palimp Ltd is contradicted by the State’s own records retrieved from the IPA which show that Thomas Ugl was one of two founding shareholders and directors of Palimp Ltd with Tom Maip in 1993.  Those are the official records.

74.	In this regard, the name “Thomas Ugl” appears a total of four times in four separate documents, once each on P10 (Form 40 - List of persons who have consented to act as directors and Form 39 - Consent to act as directors) both dated 16 November 1993 and once each on P9 (Return of allotment of shares) and P11 (Particulars of directors, managers and secretaries), dated some weeks later on 14 December 1993, albeit that I note that on P10 Ugl is spelt “Ugl” whilst on P9 and P11 it is spelt “Ulg”. These documents were prepared and lodged with the IPA by Ring & Associates Accountants based here in Mt Hagen. Without any evidence or explanation to the contrary, on the State’s own documents it appears that there was a person called Thomas Ugl and that person was a shareholder and director of Palimp Ltd with Tom Maip from its formation. 

75.	What’s more, it appears that P10 was signed by Paul Ugl, such that the person who signed above the typed name “Thomas Ugl” on P10 signed “Paul Ugl”.  

76.	Joseph Ulg Ninji confirmed that the signature on P10 was indeed that of his father, Paul Ugl Ninji. 

77.	Furthermore, there is no dispute amongst the State’s six witnesses that Paul Ugl Ninji and Tom Maip were the founding directors and have always been the directors of Palimp Ltd.

78.	Whilst hardly determinative, it is also the case that Paul Ugl Ninji’s firstborn, Tomson, bore a very similar name to Thomas.

79.	There was no handwriting evidence to assist the Court but on the face of it the signatures on P10 and P13, the subject of the charges, appear to be very similar.  

80.	In this regard, it is telling to note that the person who signed as Thomas Ugl on P10 spelt their name “Ugl” as they did on P13, that is g before l, unlike the typed spelling of Thomas Ulg on P13 which transposed the l and g. That is consistent with P10 and P13 being signed by the same person. 

81.	In this regard it is apparent from P22 that the spelling of the name Ugl is sometimes interchanged with Ulg, eg P22 refers to Paul Ugl Ninji whilst his sons are referred to as Nelson, Joseph and Tomson Ulg, but it is clearly intended to be the same name.

82.	As is evident throughout this case and its documentation there are variations in the spelling of names of both places and persons.

83.	Whilst it is not clear what Paul Ugl Ninji was signing in the photo D3, it is also possible that it was P13. 

84.	In all the circumstances the State has not excluded the possibility beyond reasonable doubt that firstly, Thomas Ugl did in fact exist and furthermore that Paul Ugl Ninji did also go by the name Thomas Ugl and that he did sign P13, the Notice of Change of Directors. 

85.	Is it possible that the name Thomas Ugl was inserted in error by the Accountants many years ago and Paul Ugl Ninji did not realise because he was illiterate? It is possible but as demonstrated through the course of this trial most people even if illiterate recognise their own name. Such an error would not explain its repeated appearance on documents several weeks apart prepared by registered accountants. It does not explain the absence of Paul Ugl Ninji’s name on the Palimp Ltd documents given that both the State witnesses and Tom Maip assert that he was one of the original founders of both MNMIL and Palimp Ltd. 

86.	Moreover, if Paul Ugl Ninji was not Thomas Ugl then Paul Ugl Ninji never held a share in Palimp Ltd and there seems to be no dispute by anyone that he did.

87.	Or to put it another way if Thomas Ugl did not exist and was not also known as Paul Ugl Ninji then who held the 50% share in Palimp Ltd?

88.	In all the circumstances the State has failed to establish beyond reasonable doubt that the writing was false for the purposes of Count 2, forgery.

89.	It follows that the State have failed to establish beyond reasonable doubt that the accused uttered a false document to the IPA as alleged, namely that it contained the name of a person who did not exist, for the purpose of Count 3, uttering. 

90.	The State also have also failed to establish that the document was a false document for the purpose of s 459(2), Criminal Code for stating that there was a resolution to change the directors to McQueenie Maip Waia when there was none. Putting aside the technical legal issues that arise in relation to that question regarding a false document versus a document containing a false statement – see State v Kingsley (No 3) (2024) N10916 – having regard to my findings above the State has not excluded the possibility beyond reasonable doubt that there was such a resolution by the directors at the time.  

91.	The State alleged that the accused conspired to appoint McQueenie as a director and deceitfully changed the directors without any meeting resolution, without the knowledge of the financial members of Palimp Ltd and appointed a person who was not a member of Palimp.

92.	The principal difficulty for the State on this charge is that it was premised on the basis that the accused conspired to forge the change of directorship in the name of a person who did not exist and without a resolution. For the reasons outlined above that case fails.

93.	The State did not particularise in the indictment what it was that the accused conspired to defraud the financial members – by which I understand this to mean the original contributors - of MNMIL and Palimp Ltd of. As I understand it, however, it was the lawful right to select a director from within the Moge Nambuga Milimb tribe or at least a male descendant of an original contributor or at least restrict it to such a person, which right was held on trust by the holders of the shares in Palimp Ltd.

94.	It appears to me that the shares held by Tom Maip and Thomas Ugl/Paul Ugl Ninji were held on trust for the original contributors of Palimp village, including themselves. That is those shares were distinct from each of Tom Maip and Thomas Ugl/Paul Ugl Ninji’s interest in Palimp Ltd and in MNMIL as original contributors and distinct from their own right to benefit from any dividends paid by MNMIL.  

95.	It does not appear that this was the subject of any written trust instrument. The State did not tender Palimp Ltd’s memorandum of association shown to Tom Maip during his interview. 

96.	But it was implied in the circumstances, such that a few years after contributions were made separate clan or village companies were established for the purpose of passing on any dividends paid to Palimp Ltd by MNMIL.

97.	It also seems entirely possible to me, in fact very likely in all the circumstances, that the shareholders’ right to appoint a director to Palimp Ltd was subject to the duty to consult the group of original contributors or their descendants from Palimp or at least restrict it to such a person. 

98.	Tom Maip disputes this, however, and there is some conflicting evidence as to whether a director had to be drawn from the Moge Nambuga Milimb tribe or the Palimp clan or an original contributor or their descendent and whether or not that applied to MNMIL and/or Palimp Ltd. Joseph Ulg Ninji understood that he should automatically be director of Palimp Ltd as the share belonged to his father. There was also some discrepancy as to whether Mr Waia was a blood member of the clan, or the extent to which he was. Ultimately, this was not the focus of the case which was on the existence or otherwise of Thomas Ugl and in the circumstances and having regard to my findings above I am not able to form a definite view.

99.	As above, the State has failed to establish Count 3 beyond reasonable doubt.

100.	Accordingly, the accused must be acquitted of all counts in the indictment.

Verdicts accordingly. 

___________________________________________________________
Lawyer for the State: Public Prosecutor		
Lawyer for the accused:  Public Solicitor