Akiko v Ekepa [2023] PGSC 90; SC2442 (21 August 2023)

SC2442

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 96 OF 2021

[In the Consolidated Appeals – SCA No: 66 of 2021, SCA No. 131 of 2021, SCA No: 139 of 2021, SCA No: 07 of 2022]

BETWEEN:
NELSON AKIKO
First Appellant

RUEBEN LOLI NALEPE
Second Appellant

V
MARK TONY EKEPA
First Respondent

AND
HON. JOHNSON TUKE, MP MINISTER FOR MINING
Second Respondent

AND
MINERAL RESOURCES AUTHORITY
Third Respondent
AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Anis, J
2023: 9^th, 10^th, 11^th and 21^st August

STAY APPLICATION – seeking alternative relief – s.5(1)(b)- Supreme Court Act Chapter No. 37 – whether interim order should be granted to prevent prejudice to the claims of the parties – various considerations - ruling

PRACTICE AND PROCEDURE – invoking of s.8 – Supreme Court Act Chapter No. 37 – whether party may request a single judge of the Supreme court to invoke the provisions of s.8 – consideration - ruling

Cases Cited:

William Chilen v The State (2011) SC1099
James Pari v. The State [1993] PNGLR 173
Kawari Fortune Resources Ltd v Louis Limbo Apurel (2015) SC1614
Rex Kiponge v Hon. Walter Schnaubelt and Ors (2023) SC2360

Counsel:

R Saulep, for the First and Second Appellants
P Harry, for Kimalia Hondonale & Yanale Lane
Y Kapili, for the First Respondent
N Saroa, for the Second & Third Respondents
J Nandape, for Porgera Landowners Association Inc.
R Uware, for the Fourth Respondent

RULING

21^st August 2023

1. ANIS J: This was somewhat a lengthy hearing of the appellants’ Amended Application for Stay filed 2 August 2023 (Application). The appellants initially applied for a stay order. They later settled for this alternative relief, namely, interim restraining orders under s. 5(1)(b) of the Supreme Court Act Chapter No. 37 (SCA), against the respondents and those persons named in the Application.

2. Related parties, Kimalia Hondonale & Yanale Lane, supported the Application whilst the respondents and interested party Porgera Landowners Association Inc. opposed it.

3. This is my ruling.

BACKGROUND

4. The other related appeals, as identified in the heading, have been consolidated with the present appeal.

5. The Application, however, is made by the 2 appellants in SCA 96 of 2021 (this or present appeal). In this appeal, they are challenging a decision of the National Court that was made on 2 July 2021, that is, in proceeding OS 102 of 2021 (OS 102). The respondents, who were parties in OS 102 have obtained a consent order amongst themselves. This consent order is the subject of this appeal (2^nd July consent order). In the 2^nd July consent order, it was decided, amongst other things, (paraphrase) that the landowners of the Porgera Gold Mine Area (PGMA), where the new Special Mining Lease (SML) is situated (Porgera landowners), would return to Porgera, conduct clan validation exercise and appoint new respective sub-clan agents.

6. There are 25 sub-clan agents or representatives of the Porgera landowners within the PGMA. The appointment process had to be carried out primarily due to the fact that the old special mining lease for the mine had expired, and since then or recently, the State has issued this new SML over the PGMA. This was part of the preparatory work that had been ongoing between the new developers, the State, the Enga Provincial Government and the Porgera landowners, that is, towards reopening of the Porgera Gold Mine (PGM).

7. Pursuant to the 2^nd July consent order, the Porgera landowners all met in Porgera in Enga Province and elected their respective sub-clan agents through the validation exercise. The event took place between 26 July 2021 and 6 August 2021, which is about 2 years ago. After that, the landowners or the relevant parties filed proceedings OS 193 of 2021 and OS 208 of 2021 before the National Court, to affirm the appointments of the 25 new sub-clan agents. On 15 September 2021 and 23 September 2021, the National Court affirmed the appointments in the 2 proceedings.

8. The above, in my view, are the material facts or background for the purpose of this Application.

COMMON GROUND

9. As stated above, the appellants have abandoned their main relief for stay. They have sought instead an alternative relief, namely, restraining orders under relief 1.4 in their Application. They intend to injunct the 25 appointed sub-clan agents of the Porgera landowners from, amongst others, holding themselves out as sub-clan agents and from participating in or signing any agreement, in the coming Mining Development Forum which will be held in Porgera in the coming days or weeks.

10. The appellants rely on s.5(1)(b) of the SCA as the relevant source for seeking the relief. The section reads, (1) Where an appeal is pending before the Supreme Court......(b) an interim order to prevent prejudice to the claims of the parties; may be made by a Judge.

11. In the Application, I note that s.5(1)(b) is pleaded together with s.8(1)(e). Section 8, however, is a machinery provision that is supplemental to s.6 (i.e., APPEAL TO BE BY WAY OF REHEARING). Section 6 concerns exercise of power that is granted to the Supreme Court which can only be exercised by the Supreme Court. See cases: William Chilen v The State (2011) SC1099 and James Pari v. The State [1993] PNGLR 173. In other words, s.8 is not available to and cannot be invoked or exercised by a single judge sitting in the Supreme Court.

12. I also uphold Mr Saroa’s submission where he opposes application of s.155(4) of the Constitution as a relevant source. It is established law that s.155(4) of the Constitution may only be relied upon in the absence of other legislation. Section 5(1)(b) of the SCA is applicable in this instance.

ISSUE

13. The main issue is whether I should exercise my discretion under s.5(1)(b) of the SCA in favour the appellants and grant interim order to prevent prejudice to the claims of the parties.

LAW

14. The criteria for granting interim orders under s.5(1)(b) was stated in Kawari Fortune Resources Ltd v Louis Limbo Apurel (2015) SC1614 at [24] - [26], which was recently applied in Rex Kiponge v Hon. Walter Schnaubelt and Ors (2023) SC2360, that, and I quote:

24. An interim order made under s 5(1)(b) of the Supreme Court Act can, like a stay order under s 19 of that Act, have the effect of preserving the status quo pending the hearing and determination of an appeal or application for leave to appeal but these two types of relief are conceptually different. An interim order is typically an injunction addressed to an opposing party so as to protect an interest of the party seeking the interim order whereas a stay is not so addressed but rather suspends the operation of the judgement or decision under challenge: Peter Makeng v Timbers (PNG) Limited (2008) N3317 (Injia DCJ, as the Chief Justice then was). This distinction has not been understood by the original purchaser shareholder and the original purchaser directors, for the court's order of 12 November 2014 left in operation the various orders made by the National Court in the s 408 appeal. This is by no means the limit of the lack of understanding on display in this case.

25. As is apparent from the text of s 5(1)(b) of the Supreme Court Act, the purpose of an interim order is "to prevent prejudice to the claims of the parties", pending the hearing and determination of an appeal to the Supreme Court. Necessarily, that requires attention to be focussed on these questions when deciding whether or not to make an interim order: what are the claims of the parties, what is the alleged prejudice and what is necessary, pending the hearing and determination of the appeal to prevent that prejudice? There is nothing in the text of the provision which requires an applicant for such an order to demonstrate special or exceptional circumstances. It would be an impermissible gloss on that text to introduce any such requirement.

26. Identifying the claims of the parties does not entail reaching any final conclusion on the merits of the claim advanced by the applicant for the interim order, only that that applicant has an arguable case. The claims are to be found in the grounds specified in the notice of appeal or, as the case may be, application for leave to appeal and in the bases upon which those grounds are contested. Where the claim of the applicant appears to strongly arguable, even comparatively minor prejudice might warrant the making of an interim order (and the converse may also warrant the making of an interim order in the circumstances of a particular case). What is involved is the exercise of a judicial discretion in which the two considerations, strength of the applicant's claim and nature and extent of prejudice interplay, according to the circumstances of a particular case.

[Underlining and bold lettering mine]

15. I will adopt these as relevant consideration for this purpose.

16. The above case authorities were not discussed or brought to my attention by counsel for the appellants. I note that submissions made were based on the criteria for grant of a normal interim injunction which are not directly relevant. Mr Kapili for the first respondent appears to be the only counsel who made submissions in this regard with references to the case law. That said, I will, nevertheless, proceed to consider the criteria to see if they are met and whether I should exercise my discretion and grant the interim orders.

CONSIDERATION

17. I first refer to the claims by the parties. So, for this appeal, the appellants are challenging the 2^nd July consent order. I note that they were not parties in OS 102 and that the 2^nd July consent order was made without their involvement. Evidence and submissions adduced by all the parties herein shows that the appellants had attempted to join as parties in OS 102 but their application was denied by the trial Judge.

18. The appellants, I note, are ‘persons’ or a ‘person’ within the definition of s.17 of the SCA who, although were not parties to OS 102, may appeal as of right or with leave to the Supreme Court, in accordance with the provisions of the SCA and the Supreme Court Rules as amended (SCR).

19. The first query I have is this; Will the success of this appeal, which is premised on the appellant’s claim, be prejudiced by the participation of the 25 sub-clan agents in the coming development forum that they should be restrained? My answer to this query would be in the negative. The development forum is an open forum and the Porgera landowners including the appellants are entitled to participate in. I fail to see any prejudice that may be caused to the substantive appeal that is pending by the attendance of the 25 sub-clan agents who are landowners themselves in their own rights within the PGMA. I do not see how their participation in the development forum will prejudice the parties’ substantive argument that is before the Supreme Court. The Supreme Court will be tasked to determine the validity of the 2^nd July consent order which has nothing to do with the development forum that will be underway.

20. I note that Mr Saulep has made broad or general submissions to say that the appeal hearing will determine or concerns the validity or legality of the appointments of the 25 sub-clan agents. However, and in observing the tests laid in Kawari Fortune and Rex Kiponge, I note that the appellants’ grounds of appeal do not speak to or support the said submission. I observe that the appeal grounds are limited to challenges that are directly aimed at the 2^nd July consent orders premised on alleged abuse of process, error of law and denial of natural justice.

21. So, in regard to the first leg, I find that there is no real prejudice that will be suffered by the appellants thus warrants the grant of interim orders pending the final determination of the appeal.

22. In regard to arguable case, I make the following observations. The first thing that really stood out in the Application is the fact that the appellants did not obtain a stay order earlier or soon after they lodged their appeal. I note from the parties’ submissions, which are not contested, that a total of 2 stay applications had been made in the past by appellants in the related appeals (which have since been consolidated). One of them, which was filed in SCM 7 of 2022, was heard and dismissed. However, I note that in SCM 7 of 2022, the primary action relates to challenge on a different consent order that was obtained in a separate proceeding namely OS 47 of 2021. But putting that aside and for purpose of this appeal, I note that this appeal was commenced as of right on 10 August 2021. The appellants had about 2 years to either apply for stay or interim orders. So, the delay part, in my view, is significant and cannot be brushed aside. Further to that and perhaps most damaging to the appellants, is the fact that because they took no steps to protect what they are appealing against, which is the 2^nd July consent order, the events appeared to have far overtaken their cause of action or claim. Let me elaborate. It is not disputed that the Porgera landowners and all the stake holders had met and completed the validation exercise in Porgera. The Porgera landowners have appointed their 25 sub-clan agents by ballots or elections that were conducted within their 25 sub-clans that are situated in the PGMA. Those are the individuals that the appellants now seek to restrain. Following their appointments, the executives of the Porgera Landowners Association Inc. were also appointed or sworn in office, and their appointments was also sanctioned by the National Court.

23. It was also revealed in the submissions of the parties, which was also not disputed, that the 2 appellants had also participated in the elections for the post of sub-clan agents, within their respective clans but were voted out by their respective clans. The 2 appellants used to be sub-clan agents for their respective clans under the old special mining lease. They also held executive posts in the Porgera Landowners Association Inc. under its prior administration.

24. However, the present status quo is that the appellants no longer hold these positions, namely, sub-clan agent or executive member of the Porgera Landowners Association Inc..

25. I note that I had put to counsel for the appellants this query (and I will paraphrase); that since the appellants had participated in the elections within their respective clans for the posts of sub-clan agent and were unsuccessful, whether they had any standing after that to continue to retain OS 102; that whether their primary cause of action should first be to challenge their removals as sub-clan agents before they could retain their claims which they had commenced under their previous representative capacities. Counsel’s response on this point was that there were proceedings that were already filed that were on foot before OS 102 was instituted or before the validation exercise had occurred. With respect, I note that I did not receive satisfactory explanations from counsel in that regard.

26. I will remark in ending with this. Premised on the evidence and submissions that are before me, it makes legal sense that at the time when OS 102 and the other related proceedings were filed, that they were filed prior to the validation exercise. It therefore meant that the proceedings were filed at the time when the appellants (and their other aggrieved sub-clan members) had retained their status as sub-clan members for some of the 25 sub-clans of the Porgera landowners within the PGMA, that is, under the old special mining lease or administration. The appellants did not obtain a stay order or injunction back then to prevent the validation exercise or the 2^nd July consent order. They instead also participated in the validation exercise. So, when they did that and were voted out as sub-clan agents for their respective clans, they returned to the National Court to pursue various challenges most of which are now before the Supreme Court including this appeal. But the query I have, which I had queried with counsel, is, given the fact that the appellants have been voted out as clan agents, whether they can continue to retain these actions including these appeal proceedings.

27. When I take all these factors into account, it appears, and I must say that I am not satisfied that the appellants have an arguable case. I am also not satisfied that the appellants will suffer prejudiced if interim orders are not granted. I also make these conclusive findings taking into account the status quo of this appeal and what had or has transpired to date as I summarise herein:

• the validation exercise has been completed;
• the validation exercise was completed 2 years ago;
• in 2021, the appellants were voted out as sub-clan agents for their 2 respective clans;
• the appellants have not challenged or disputed their clans’ decision in voting them out as their sub-clan agents;
• the Porgera landowners within the PGMA have voted new 25 sub-clan agents to represent them as per the requirements under the Mining Act;
• the 2 appellants’ have not received their respective sub-clan agents’ permission to retain the proceedings including the present appeal;
• the newly appointed 25 sub-clan agents have voted in new executive members to the Porgera Landowners Association Inc;
• the appointment of the executive members of the Porgera Landowners Association Inc. was effected 2 years ago;
• the Porgera Landowners Association Inc. does not recognize these appeal proceedings, and it challenges the actions of the appellants and others in this consolidated appeal proceedings.
  

SUMMARY

28. In summary, I will refuse the Application.

29. I am satisfied that the appellants’ claim, as defined by s.5(1)(b) of the SCA (Rex Kiponge at para 19), concerns an appeal that is made only against the 2^nd July consent order, which was an order that was entered between the respondents. Thus, the claim is not premised on the mining development forum that will be underway shortly nor is it made against the 25 sub-clan agents whom the appellants are seeking to restrain. Thus, the status quo of this appeal, premised on the appellants’ claim as defined under s.5(1)(b), is that it will suffer no prejudice if I refuse to restrain the 25 sub-clan agents from attending the mining development forum.

COST

30. An order for cost remains discretionary. I will order cost to follow the event on a party/party basis to be taxed if not agreed.

ORDERS OF THE COURT

31. I make the following orders:

(1) The Appellants’ Amended Application filed 2 August 2023 is refused.

(2) The Appellants shall pay the Respondents’ costs of the application on a party/party basis to be taxed if not agreed.

(3) Time for entry of these orders is abridged to the date and time of settlement by the Registrar which shall take place forthwith.

The Court orders accordingly

________________________________________________________________

Saulep: Lawyers for the Appellant

Harry: Lawyers for Kimalia Hondonale & Yanale Lane

Mawa: Lawyers for the First Respondent

Nelson: Lawyers for the Second & Third Respondents

Solicitor General’s Office: Lawyer for the Fourth Respondent

Nandape & Associates: Lawyer for Porgera Landowners Association Inc.