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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCA NO. 190 OF 2023 (IECMS)
BETWEEN
JOHN NEMA
President
Hengambu Landowners Association Inc.
First Appellant
AND
HENGAMBU LANDOWNERS
ASSOCIATION INC.
Second Appellant
AND
PAUL YANAM, GEDISA YESIA,
KAILAS GEO AND MARK ANDREW
Respondents
WAIGANI: TOLIKEN J, FRANK J, CARMODY J
26 SEPTEMBER 2024; 23 MAY 2025
APPEAL – Whether the National Court failed to consider a provision in the association’s constitution; new issue raised on appeal; whether orders pronounced on four separate dates combine to “comprise the whole of the judgment”; waiver; appeal out of time; conduct of lawyer for the appellants; conduct of the first appellant
Cases cited
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705
Guinn (trading as Guinn PKF Chartered Accountants) v Serowa [2019] PGSC 133; SC2482
Punangi v Pacific Plantation Limited (2011) SC1153
Rimbunan Hijau (PNG) Ltd v Enei [2017] PGSC 36; SC1605
Telikom PNG Ltd v Kopalye [2021] PGSC 66; SC3241
Counsel
Mr. D. Kaima for the appellants
Mr K. Aisi, Mr G. Konjib for the respondents
JUDGMENT
THE APPEAL
did not exercise proper judicial function to determine, sufficiently and/or at all, the application of section 4 article 5 of the Second Appellant’s Constitution in granting the orders of 8 September and 17 October 2023.
Section 4: Development Forum and MOA Reviews/Renewals
The Development Forum and the MOA Reviews and Renewals are extremely important periods for the Hengambu Tribe. It is imperative that the Hengambu Tribe are represented by the same Executive during the entire negotiating period.
Whoever are the Executive Committee at the time of the commencement of the Development Forum or an MOA Review/Renewal will remain as the Executive Committee for the Hengambu Landowners Association during the period of this negotiations. If an election should have occurred during this negotiating period, then the election will be deferred until within three (3) months of the signing of the MOA or the signing of the renewal of the MOA.
Section 2: Election of the Executive Committee
Subject to Article 5 Section 4, the Executive Committee shall be elected at the Tri-Annual General Meeting of the Association (i.e. Every 3 years). The next Election following the adoption of this Constitution will be scheduled for March 2017.
Section 3: Term of Office
Subject to Article 5 Section 4, the term of each position on the Executive Committee shall be until the next Tri-Annual General meeting after their election where all Executives shall resign and be eligible for re-election.
BACKGROUND
called for an AGM to be held on 12 May 2023. (We note there is a dispute as to whether the term of office was 2 or 3 years and whether the constitution’s term of office had been changed without the members’ knowledge. That was not an issue before this Court.)
HEARINGS BEFORE THE NATIONAL COURT
22. Mr Nema as the then first plaintiff, sought a declaration that any, what he considered to be “unauthorised meetings, called by the respondents (the then defendants) be declared “illegal, null and void”. He also sought orders to restrain the respondents so as “not to misrepresent the second plaintiff association to relevant authorities and to interfere”. He filed an Originating Summons on 29 May 2023. If the National Court made the declaration sought by Mr Nema the 13 May 2023 AGM meeting which resolved that elections should be held would have no effect.
23. In the Originating Summons the appellants sought the following relief:
The Plaintiffs applies for the following Orders:
(Article 7 s. 3 governs the approval of the use of or change to the Association logo - this Court’s notation.)
Particulars of illegality and unwarranted disturbances by the defendants
2. A further Order therefore, that the defendants are not the elected executives of the Second Plaintiff under Article 5 and other enabling provisions of the Constitution, therefore have no right, authority and capacity to act for and on behalf of the Second Plaintiff Association in one way or the other.
3. A consequential Order that the Defendants, their associates, agents, friends, families whosoever be permanently Restrained from holding themselves as representatives or executives of the Second Plaintiff in anyway, form or manner.
5.The Defendants to personally pay the Plaintiffs’ costs of the action to be taxed on a Solicitor Client Basis if not agreed.
(grammatical errors in original)
24. The matter was heard on 13 July 2023. The appellants relied on two affidavits by Mr Nema filed on 19 June 2023 and 12 July 2023. In the first affidavit Mr Nema deposed that, pursuant to art.5 s. 3 of the constitution, the term of his executive would expire in August 2023 - in about a month and a half’s time. He stated that the executive committee’s term would continue until August 2023 when elections would be held.
25. In his second affidavit Mr Nema deposed that “...our term will expire next month August 2023.” and “The defendants should simply wait until the next month when elections will be conducted and they can contest.”
26. Neither of those affidavits made any reference to:
(a) Art. 5, s. 4 ; or
(b) Any negotiations pursuant to art. 5 s. 4; or
(c) A Development Forum or a MOA Review or a MOA Renewal.
27. The transcript of the hearing of 13 July 2023 reveals that the appellants’ then counsel, Mr Kusip, also made no reference to (a), (b) or (c) above. Instead Mr Kusip informed the Court that elections would be conducted in August 2023.
MR KUSIP: The only order that the plaintiffs are seeking is to have the defendants named restrained from holding themselves out as duly elected representatives because the defendants are not duly elected representatives of the second plaintiffs [sic]...the first plaintiff is asking the court to restrain them (the defendants) until such time as the second plaintiff goes to election and that election is about to take place next month...
HIS HONOUR: so, when are the members going to have their meeting?
MR KUSIP: By next month, in August.
28. Shortly after, again in reference to the elections, Mr Kusip informed his Honour that pursuant to art. 5 s. 3 that the last election had “happened in August 2020 and it will happen next month, August 2023, according to that article and subsection.”
29. It should be noted that despite the interchangeable use of the words “meeting” and “elections” the transcript reveals that it was understood by all that what was being discussed was a meeting in August 2023 at which an election would be held.
30. The respondents’ counsel, Mr Aisi, argued that, pursuant to art. 4 s. 8 of the constitution, that if meetings specified in the constitution did not take place then members had the right to ask Hengambu Elders to put pressure on the executive to hold a meeting. He stated that Hengambu Elders instigated the purported “unauthorised meetings”, as they were entitled to do. Therefore, he contended, the meeting of 13 May 2023 calling for an election was lawful.
31. Mr Aisi relied on three affidavits. Mr Geamsa Monso deposed that he was a member of the then four person executive committee and had been elected Treasurer of the association at every AGM since 2006. He claimed Mr Nema had forced him to sign a minute, which he was not permitted to read, which removed Mr Monso as a signatory to the association’s bank accounts and that since then Mr Nema had been accessing the bank accounts “without full executives’ attention”. He also stated that no financial reports had been given and no AGM held despite the committee’s term having expired in March 2023.
32. Mr Monso deposed to “much pressure” from the Hengambu Elders on the Secretary, Deputy President and himself to initiate that meeting. He said that they, accordingly, called the 13 May 2023 AGM and received nominations for all executive committee positions. He said that Mr Nema had had notice of the AGM meeting but “chose not to attend” and that Mr Nema “is only one person and is serving his own interest therefore cannot hold everybody’s wish at random” [sic -possibly “ransom”].
33. Mr Gedisa Yesia deposed to being one of the defendants and the Secretary of the association. He stated that he along with Mr Monso, and the Vice-President, being Mr Paul Bana, attended the Elders’ meetings and the subsequent AGM. He said Mr Nema received a notice but did not attend. He said the “paramount reasons” for calling the meeting were because there had been no AGM, no financial reports, and that Mr Nema had been “working in isolation” and “We were not part of his decisions with regard to the management” of the association.”
34. Mr Yesia explained that because Mr Nema was working in isolation that he, Mr Monso and Mr Bana had no choice but to comply with the peoples’ demand. They had called the 13 May 2023 AGM. Mr Nema had chosen not to attend. He explained that nominations were called for the executive committee positions and it was resolved that “the election date was said to be appointed when the responsible government authorities such as PNG Electoral Commission, Morobe and Division of Mines, Morobe are advised and hence, ready to proceed to run the election.”
35. He stated that the association is funded by the National and Provincial Governments and the mine developer and, as such, the management must be articulate, and prudent and transparent. He said “It must not be managed in a one man style of leadership as it is, in this case.” He concluded that they have complied with the constitution “to call an AGM to address and rectify these pressing issues herein and hence, our initiatives and effort thus far, should not be unnecessarily hindered or stopped at this juncture.”
36. Mr Yesia attached the minutes of various meetings to his affidavit including the minutes of the AGM of 13 May 2023 which resolved that elections should be held.
37. Mr Aisi, in both his affidavit and oral submissions argued that the appellants’ Originating Summons was deficient in that it failed to identify a cause of action, did not sufficiently particularise the terms of the articles of the constitution relied upon, failed to provide details of the purported illegal meetings, and should be struck out.
38. His Honour expressed concern that if the proceedings were dismissed the “problems will stay there”. He queried when the elections were going to be held given the AGM resolution. Mr Kusip responded “”it will happen next month, August 2023” (recorded erroneously in the transcript as 2020).
39. His Honour was also concerned as to whether he had the power to order that a meeting be held. Both counsel responded that he did have such a power. In his reply Mr Kusip was asked by his Honour “What about the suggestion that the court should direct a meeting in August”. Mr Kusip responded.
Yes, I should concede to that. In my view that would be the appropriate option the court can decide. Since the matter has already come before the court, the court has the power to order the parties hold a meeting and that is appropriate, and I should concede to that.your Honour.
40. At that point Mr Aisi clarified that if any order was to be made with respect to a meeting it should be in the context of the lawful meeting already held on 13 May 2023 and the resolution that an AGM be held at which an election would be conducted. His Honour noted that point. Mr Kusip was silent.
41. The decision was reserved to the next day, being 14 July 2023.
14 July 2023 Orders
42. On 14 July 2023 his Honour delivered his reasons. He found that the appellants’ pleadings did not disclose a cause of action and refused to make the declarations sought by the appellants. He noted the failings of the first plaintiff in his role as President and addressed his concerns as follows:
The issues raised are for a wider community interest. It involves the interest of the members of the Hengambu Landowners' Association. The facts showed that the plaintiff has failed to conduct meetings and provide financial reports which resulted in dissent amongst the group members. If the Court dismisses the matter without any further directions, the issues will remain unattended and even prolonged.
43. For that reason, his Honour made orders with a view to bringing the dispute to conclusion by ordering that elections be held. The following orders were issued:
44. A reading of the transcript of the orders pronounced in Court reveals two errors in the orders issued by the Court. His Honour pronounced orders which included, in order 2, the words “for the purposes of electing its executive members” after “(AGM)” and referenced the correct 13 May 2023 meeting minutes – not 13 July 2023.
45. Nothing turns on this point given the orders were made on the basis of Mr Nema’s and Mr Kusip’s express statements to the Court that the appellants would be holding a meeting at which elections would be conducted in August 2023 and the Orders, reflect those statements, both as pronounced and as issued.
8 September 2023 Orders - non-compliance by the Appellants with the Orders of 14 July 2023
46. Mr Nema and the executive did not comply with the 14 July 2023 orders. Instead, they filed a notice of motion seeking:
(1) an extension of time to comply with the orders; and
(2) pursuant to art. 5 s. 4. that Mr Nema and the executive remain “as representatives of the Second Plaintiff for the purposes of Mining Development Forum negotiations over the Wafi-Golpu Mine [the project] until within 3 months after the signing of the Mining Development Forum over the said project.”
47. At the hearing of that application Mr Kusip sought an adjournment:
...the reason is that my clients are in the process of complying with those orders of the court and I am compiling evidence to file an additional affidavit in compliance of those orders...
48. He repeated a statement to the same effect later in the hearing:
My clients need time to further comply with the orders of 14 July and we are seeking extension of those orders. That is the essence of the motion.
49. In so doing he confirmed that this clients were complying with the 14 July 2023 orders to hold an election but needed more time. No arguments were presented with respect to any constitutional prohibition on conducting an election in August 2023 or at any other time.
50. It is at this point that this Court makes the obvious observation that if the appellants wished to take issue with the 14 July 2023 orders based on art. 5 s. 4 a notice of appeal should have been lodged at that time. It was not.
51. Instead, the transcript reveals that when his Honour informed Mr Kusip that the second order sought by the appellants which asked for the existing executive committee to remain in place without an election would “defeat the previous orders”, Mr Kusip conceded that point. He stated “We can forgo order number 2”. He sought only an extension of time. No reference was made to art. 5 s. 4. No affidavit was relied upon at the hearing.
52. His Honour ordered an extension of time to 13 September 2023 and refused to make the second order. His Honour pronounced the following orders in Court:
i. The reliefs sought by the plaintiff; order number (1) is granted. That is, leave is granted for the extension of time be granted for the compliance of orders given on 14 July 2023.
ii. The second plaintiff shall conduct the AGM for electing of executive members as ordered by the court on 13 May 2023 between or by 13 September.
iii. Orders ought in item (2) of the notice of motion are refused.
iv. The plaintiffs shall pay the costs of this application.
53. This Court notes that, again, there were differences in the orders issued by the Court when compared to those actually pronounced. The issued orders stated: “The second plaintiff shall conduct AGM as ordered by Court on 14 July 2023, by 13th September 2023.” The reference to the elections was omitted and the reference to “13 May” was appropriately changed to “14 July”.
54. Again, nothing turns on this point for three reasons. First, the appellants had sought an extension of time to comply with the orders of 14 July 2023 and those orders specified that an election be held. Secondly, as earlier stated, both Mr Nema and Mr Kusip had told his Honour that an election was going to be conducted in August 2023. Third, as previously discussed, the transcript is clear that the interchangeable use of the word “meeting” and “election” was in the context of an election to be held at the meeting.
17 October 2023 Orders – the Appellants’ breach of the 14 July and 8 September 2023 orders
55. The respondents filed a notice of motion heard on 17 October 2023. They asserted that the appellants called a meeting on 13 September 2023 without consulting the respondents as to an agreed date - in breach of the orders.
56. They relied on affidavits from Mr. Bobly Yapi, Chairman of Gwagov Clan, Hengambu Tribe; Mr Bob Kitombing, Chairman of Elmun Clan, Hengambu Tribe; and Mr. Petrus Simon, Chairman of Demago Clan, Hangambu Tribe. They all objected to the 13 September 2023 meeting and claimed that the persons in attendance were not registered members of the association. They were against Mr. Nema continuing as Chairman.
57. The respondents’ lawyer, Mr Kenneth Aisi, deposed to only learning about the meeting on 12 September 2023. He immediately
telephoned Mr Kusip seeking a postponement. He noted the meeting agenda made no reference to the court ordered elections. He explained
that the appellants proceeded with the meeting despite his objections and resolved that Mr Nema continue as President.
58. Mr Kailas Geo, a respondent, deposed to the facts asserted in the affidavit of Mr Aisi. Copies of the various letters exchanged
with the then appellants’ lawyers were annexed to his affidavit. In their letter of 21 September 2023 Kusip Lawyers stated:
“Our clients deny knowledge of high-jacking or subverting intent of the Orders of 14 of July 2023...Thus, we refute your clients’
allegations of contempt against us as utterly nonsense, absurd and without merit.”
59. Mr Nema filed an affidavit on 21 September 2023 which disclosed that Mr Nema, alone, or in conjunction with the executive committee:
...The issue of the election of Executive Committee is automatically revented by operation of Article 5, Sections 3 & 4 of their own Constitution. ...Our clients deny knowledge of high-jacking or subverting intent of the Orders of 14th July as alleged in your letter of 14th September 2023. ...Thus, we refute your clients’ allegations of contempt against us as utterly nonsense, absurd and without merit.
60. Most important of all Mr Nema, in his affidavit, failed to provide any evidence with respect to, as at 13 July 2023, the existence
of a Development Forum, discussions with respect to a MOA or discussions with respect to the renewal of a MOA. Instead, he made several
general observations about discussions with no details of dates or parties and referred to recent executive activities. It is open
to this Court to infer that those recent activities arose as a result of these court proceedings. Further, in whatever context they
were asserted to have occurred, there is no evidence that any other executive member was aware of or involved in those activities.
61. None of those purported activities satisfied the requirements of art. 5 s. 4. Paragraph 4 of Mr Nema’s affidavit was particularly telling. In it he deposed that on 31 of August 2023 the Minister for Mining had formally declared that the Mining Development Forum enunciated under s. 3 of the Mining Act 1992 was officially opened. Annexure “A” was the relevant letter from Mr Jerry Garry, Acting Managing director of the Mineral Resources Authority.
62. Mr Nema, by way of conclusion to his affidavit, sought an order to the effect that no elections should be called in reliance on art. 5 s. 4 due to Development Forum and MOA negotiations
63. Significant issues arise from that affidavit:
64. The appellants relied on additional affidavits none of which provided relevant evidence with respect to art. 5 s. 4. Mr Michael Ngatau stated he was the Deputy Chairman of the Tuko Clan of the Hengambu Tribe. He described any meetings called by the respondents as “not sanctioned” and that “the President John Nema gave out a notice of the AGM on the 11th and on the 13th the entire Hengambu people attended 3 days gathering.” He referred to discussions about art. 5 ss. 3 and 4 and supported the contents of the affidavit of Mr John Nema.
65. Affidavits similar in content were filed by Mr Paul Bana, Mr Steven Geame, and Mr Sammy Giactulu. They all deposed to the 13 September 2023 meeting being attended by members and that they resolved that the current Chairman and executive would continue in their roles, based on the art. 5 s. 3. provision. They referred to the Mine Development Forum negotiations.
66. Despite all of the affidavits and material relied on by the appellants and despite their collective statements there was no evidence that elections were conducted in accordance with the court orders and the requirements of the constitution.
67. At the hearing on 17 October 2023 Mr Kusip, for the first time, raised an argument in reliance on art. 5 s. 4. As discussed he proffered no evidence supportive of the application of art. 5 s. 4 as at the date of the 13 July 2023 hearing.
68. His Honour, mindful of the orders requiring an election be held, repeatedly asked Mr Kusip to take him to the evidence that the elections had been held as ordered by the Court. A lengthy exchange followed:
MR KUSIP: There is no election, your Honour... they have their own constitution that regulates the overall conduct and operations of the members of the association. In that meeting (the meeting of 13 September 2023) that issue of the elections came about ...It was discussed and then they had discussed article 5, sections 3 and 4 of the constitution which prevents them from holding an election. .... It says (when referring to art. 5 s. 4) that when there is a mine development forum, negotiations and consultations ongoing, the serving executives shall continue to represent the people of Hengambu. And that article has been discussed...
HIS HONOUR: But what about the court order? The Court ordered them to do an AGM for the purpose of electing executive members.
MR KUSIP: ... So, the members have unanimously resoluted [sic] that there will not be any election and the current executives shall continue to represent the second plaintiff association and its members. That was the resolution reached.
HIS HONOUR: And you stopped the LLG or district administrator from conducting a meeting.
MR KUSIP: Yes.
HIS HONOUR: I mean, you advised them not to come.
MR KUSIP: Yes, because...
HIS HONOUR: So that will be in a direct contravention of the court order.
MR KUSIP: ----with respect, I had explained to them article 5 and sections 3 and 4 and ----
HIS HONOUR: Well, the better way is for you to come to court to seek variation of the orders
69. A further discussion ensued and his Honour made the following pertinent observations:
HIS HONOUR: I think you have breached the orders of the court. Your office – your law firm – rather than the defendants.
HIS HONOUR: You should not have advised someone to breach the terms of the court orders. You deliberately have done that so what do you think, you should concede to the applications or you can have the matter, or you want the court to make a ruling on this?
and
HIS HONOUR: But if you as a lawyer and the defendants who are deliberately defying the orders of the court, I still have the matter before me.
MR KUSIP: yes.
HIS HONOUR: So, what do you think the Court should do? Just dismiss the application?
MR KUSIP: No.
HIS HONOUR: Or should (I) cite some of you for contempt?
MR KUSIP:I will submit that -
HIS HONOUR: Or maybe find a middle way where everybody goes back to comply with the terms of the previous orders issued by the court? Anyway, think about it.
70. Further exchanges followed at the conclusion of which his Honour directed:
I will vary those orders. There will not be any AGM but the meeting is specifically for the election only.
The costs will be paid by Mr Nema personally.
I find that the conduct of the first plaintiff is defiant of the orders of the court so he will be the one who will pay the costs of the proceedings on solicitor client basis.
71. His Honour then delivered his reasons. He found that the appellants had deliberately excluded the district administrator for Mumeng from the meeting in direct defiance of court orders. He further found that the meeting had not been conducted for the purposes of an election as ordered and that there was no proper agenda and that “in a way the members were misled.” He then ordered that elections be conducted between 6 and 13 September 2023 as follows.
20 November 2023 Orders – Elections finally conducted in accordance with the Court Orders
72. At the mention on 20 November 2023 Mr Polipa Asaya, the Manager of Mumeng LLG, Bulolo District, filed an affidavit deposing that elections for a new President and executive committee had been held on 13 November 2023 in compliance with the court orders.
73. He explained that in compliance with the 17 October 2023 court orders he had requested that Mr Nema provide funds for the election. He stated that Mr Nema ignored his request. He then asked the Developer of the Wafi Golpu joint venture for funds and was advised that all of the funds available for the association had been released to Mr Nema.
74. In order to conduct elections by the nominated 13 November 2023 he stated that he “had no choice” but to use his own Mumeng LLG Administration Officers and MS15 police and general duty police to “ensure the smooth flow of the said election.”
75. He provided the Election Summary demonstrating that a new President and executive committee had been elected. All four of the existing executive committee had stood for re-election. Mr Nema was unsuccessful as were two of the three remaining executive committee members. The third, Mr Giansa Monso, a deponent in these proceedings, was successful in being re-elected.
76. His Honour then made the following order:
ORDERS FOR A STAY – 19 FEBRUARY 2024
77. The appellants filed their notice of appeal on 8 December 2023. They then sought orders for a stay of the 14 July 2023, 8 September 2023, 17 October 2023 and 20 November 2023 orders pending the hearing and determination of this appeal. They relied on art.5 s. 4 of the constitution.
78. The stay was granted on 19 February 2024 by his Honour Justice Hartshorn. As a result Mr Nema and the executive committee have remained as the executive committee, pending the outcome of this appeal, since that date.
COURT DECISION AND REASONS
79. The appellants’ case is that the National Court Judge erred in law and fact in failing to give consideration to art. 5 s. 4 when making the Orders the subject of this Appeal.
80. This Court rejects those submissions for the reasons set out below.
An Issue Raised for the First Time on Appeal
81. First, the orders of 14 July 2023 were made as a result of the appellants’ own submissions. In Mr Nema’s own affidavit and through their counsel, Mr Kusip, at the hearing on 13 July 2023, reliance was placed on art. 5 s. 3. The presiding Judge was told in no uncertain terms by both Mr Nema (in his affidavit) and Mr Kusip (by way of oral submissions), that, in accordance with art. 5 s. 3, the appellants would be conducting elections in August 2023. Accordingly, his Honour made orders to that effect.
82. No reference was made to art. 5 s. 4 of the Constitution – a provision upon which the appellants now belatedly seek to rely.
83. It has long been held that parties cannot rely on arguments in an appeal which were not made before the Judge at first instance. In Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705 the Supreme Court noted that “It is settled law that, unless a party has raised an issue in the court below, he is not at liberty to raise it on appeal.”
84. In Rimbunan Hijau (PNG) Ltd v Enei [2017] PGSC 36; SC1605 (25 September 2017 the Supreme Court affirmed that issues of law and facts not raised in the Court below cannot be raised in the Supreme Court. At paragraph 10 the Court found that:
In the present case, we note that the parties agreed upon the issues they were going to trial for. The issues raised in appeal grounds 7, 8, 9, 10, 18, 23, 33, 34, 35 and 36 were not on the list of issues agreed upon. Additionally, the record of the trial per the transcript of proceedings in the National Court bears no witness of RH raising any of these issues in the National Court. No doubt RH is raising these issues for the first time in this appeal without first raising them in the Court below. This, it cannot do for reasons outlined above.
85. The circumstances of the case before us makes it clear that no argument with respect to art. 5 s. 4 was relied on by the appellants until 17 October 2023 when the respondents were already in breach of the orders and at which hearing they failed to adduce any factual evidence in support of reliance on art. 5 s. 4. For the reasons given in Rimbunan Hijau they cannot now raise that issue on appeal.
86. In Telikom PNG Ltd v Kopalye [2021] PGSC 66; SC3241 (3August 2021) their Honours elaborated on “The difficulties attendant on permitting an appellant to raise, on appeal, new issues not previously before the primary Judge at first instance ..” by reference to the High Court of Australia in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 a decision which has been adopted in both International Finance Co. v KK Kingston Ltd (2019) SC1872 and Atlas Corporation Ltd v. Ngangan (2020) SC1995. In Coulton v. Holcombe the High Court stated:
It is fundamental to the due administration of the justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
87. In the case before this Court there has been skirmish after skirmish. Court time and legal costs have been needlessly incurred due to the conduct of the appellants. There was no error of law or fact by the National Court Judge.
Waiver
88. That is, for this Court, the end of the matter. However, for reasons of demonstrating the futility of this appeal from the outset, we make the following further observations.
89. On 8 September 2023 reliance on art. 5 s. 4 was expressly disavowed. The presiding Judge was told, on behalf of the appellants, “we can forgo order number 2” (being with respect to art. 5 s. 4) and pressed only for order 1 (being an extension of time to comply with the orders of 14 July 2023). There was, therefore, no error of law or fact by the National Court Judge.
90. Further, given there was no reliance on art. 5 s. 4 at the two first court appearances and no evidence on the final occasion (even if that evidence had been admissible in the context of a breach of existing orders) this Court finds the appellants waived their right to reliance on art. 5. s. 4.
91. As held in Guinn (trading as Guinn PKF Chartered Accountants) v Serowa [2019] PGSC 133; SC2482 (16 August 2019) at paragraph 12:
“ A waiver may occur where one party to the litigation conducts himself/herself in a manner as to evince an intention to waive his/her right or where his/her conduct is inconsistent with any other intention than to waive it.”
92. In that case there was an argument by the applicant with respect to dismissal of the appeal for want of prosecution. It was determined that the applicant had drafted consent orders for directions to progress the appeal. Those orders were then made by the Court. The Court held that:
11. Having regard to the above step by the applicant, the question that arose during argument, which now falls for determination, is whether the applicant waived his right to object to the delay to prosecute the appeal?
...
...
...
15. We entertain no doubt in our minds that objectively assessed the applicant's act of taking the lead to draft consent Directional Orders on or about the 14th of March, 2019, to progress the matter, which was finally endorsed by the Court on the 18th of March, 2019, was an unequivocal indication that the applicant no longer had any interest in taking issue with the delay, and wanted the appeal to proceed to be determined in due course.
93. In the circumstances before this Court it is clear that the appellants, who relied on art. 5 s. 3 when informing the presiding Judge that they would hold elections in August 2023, waived their rights with respect to art. 5 s. 4. There was no error of law or fact by the National Court Judge.
Failure to Appeal within the Prescribed Time
94. Finally, if the appellants wished the orders to hold elections be set aside or quashed they should have filed a notice of appeal with respect to the 14 July 2023 orders within the applicable time. They did not. In order to overcome that obstacle they have, in their written submissions, stated that the appeal is against the “whole of the judgment” being collectively the orders of 14 July 2023, 8 September 2023, 17 October 2023 and 20 November 2023. By extending the appeal over a range of dates they seek to extend the time by which the appeal should have been lodged.
95. They do so in reliance on Punangi v Pacific Plantation Limited (2011) SC 1153. Punangi considered what was or was not an interlocutory judgment for the purposes of deciding whether leave to appeal was required to be sought. It considered the two approaches – “the application approach” and the “order approach” and concluded that the “order approach” should continue to be adopted. The “order approach” determines whether the subject orders finally dispose of the rights of the disputing parties. The appellants argue that it was not until the 20 November 2023 orders were made that there was a final disposition of the parties’ rights.
96. The important feature of the case before this Court, however, is that on 14 July 2023 his Honour found the appellants had no cause of action. The dispute before the Court as to whether the declarations and restraints sought by the appellants should be granted ended then. His Honour refused the relief that had been sought. However, as his Honour explained, he recognised the “wider community interest” and that if he dismissed the matter “the issues will remain unattended and even prolonged”. For that reason, he made the orders for elections. The 14 July 2023 orders were the substantive orders. The subsequent orders arose as a result of non-compliance by the recalcitrant appellants with the July orders. There was no further consideration of the rights of the parties.
97. The substantive orders from which an appeal should have been lodged were the 14 July 2023 orders. The appeal was not lodged until 8 December 2023. It is out of time. There was no error of law or fact by the National Court Judge.
98. The appeal is dismissed.
99. We note here that the effect of the appeal being dismissed is that the elections held on 13 November 2023 were lawfully conducted in compliance with the 14 July 2023 orders. Those orders were made by the presiding Judge “for the wider community interest” of the members of the Hengambu Landowners’ Association. His Honour was quite properly concerned that if he did not make further directions “the issues will remain unattended and even prolonged.”
CONDUCT OF MR JOHN NEMA, THE FIRST APPELLANT AND MR KUSIP, THE APPELLANTS’ LAWYER (AND POSSIBLY CERTAIN UNIDENTIFED MEMBERS OF THE EXECUTIVE COMMITTEE)
100. We now turn to a most troubling aspect of these proceedings. These reasons have contained a factual account of what has transpired in much greater detail and length than what would normally be required. We have done so to demonstrate the care we have taken to consider the conduct of Mr Nema and Mr Kusip and possibly some of the executive committee members.
101. We note, however that the key players, so to speak, throughout appear to have been Mr Nema and Mr Kusip. We note that the court orders were not complied with in that:
102. Article 5 s. 4 of the constitution was not directly considered by the National Court during the course of the hearings because it was not relied upon by the appellants and no relevant evidence was before the Court. The National Court was expressly told by the appellants that there was no reliance on that provision and that, in reliance on art. 5 s. 3, a meeting would be held at which an election would be conducted in August 2023. The 14 July 2023 orders were made based on that premise. The appellants cannot now complain that his Honour “did not exercise proper judicial function to determine sufficiently and/or at all, the application of art. 5 s.4.”
103. It is for that reason that this Court was not required to consider art. 5 s. 4. We make no further observations with respect to that art. 5 s. 4 as it was not, therefore, a matter before us other than to say, as previously stated, that it is a “curious” provision.
104. We have set out below an extract of the Minutes of the 13 September 2023 Meeting (annexure “H” to the affidavit of Mr Kusip filed 21 September 2023). That affidavit was filed by Mr Kusip’s law firm, Kusip Lawyers, and relied upon by Mr Nema as a purported accurate record of what transpired at that meeting.
105. They reveal, in significant detail, the extent of the deceit perpetrated upon the members of the association by Mr Nema and Mr Kusip in failing to inform the members of the National Court’s findings against Mr Nema; that the appellants had been unsuccessful in their claim; that the National Court had ordered that a meeting be held for the purposes of conducting an election; that the appellants had failed to consult with the respondents for an agreed date for the meeting; that an election had not been held; and that the relevant electoral authorities had been expressly excluded from involvement with the election by Mr Nema. They also reveal the lengths that both Mr Nema and Mr Kusip, and others, went to convince members that Mr Nema and the executive committee should remain as office holders.
106. They demonstrate that Mr Kusip was not simply complicit in the appellants’ failure to comply with the orders but was instrumental in that non-compliance.
107. The procedural non-compliance with the constitutional requirements for calling a meeting to conduct an election is a matter for the association but this Court notes, inter alia, the 13 September 2023 meeting notice was issued 2 days before the meeting instead of the required 5 days; the failure to call for written nominations for the executive; the failure to include in the agenda that an election would be held; and a purported extension of the executive committee’s term of office from 3 to 5 years.
EXTRACT FROM THE MINUTES OF THE HENGAMBU LANDOWNERS ASSOCIATION ANNUAL GENERAL MEETING – 13 SEPTEMBER 2023
EXTRACT: 2.2 Purpose of the Meeting
The President stated:
“...and secondly the meeting today on the 13th September 2023 is compliant with a court order for us to have this AGM meeting. Third and finally to discuss the election of the
executives, term of their office.”
5. THE ASSOCIATION CONSTITUTION
The president introduced the agenda by holding up a copy of the Association Constitution. He further explained to the meeting that this is the second draft. This second draft was amended by the previous executive part under the Presidency of our brother Paul Yanam. They have repealed the “Term of office” of the executives from two years to three years back in 2017.
The president informed the meeting that the previous administration served three terms in office and my administration also served three years which officially ended just recently on the 30th of August 2020.
“Why am I standing here today if the term of office lapsed two weeks ago?” He posed the question and then asked the lawyer on stage to explain Article 5, section 4 of the Association Constitution. (Court’s underlining)
5.1 Association Constitution-Article 5 Item 4
The president then asked the Association Lawyer Mr. Kusip of Kusip lawyers to explain Article 5, section 4 of the Association Constitution which was already projected on the board as shown below.
Article 5 Item 4: SET OUT
Before addressing the agenda, the lawyer took time to acknowledge the president and thanked him for the opportunity to speak at the important gathering of the Hengambu people.
He took the time also to commend the Hengambu people for choosing a smart and visionary landowner leader to represent them in the multibillion PGK Wafi-Golpu project. He told the people that their president has the ability a [sic] charisma to fit into any social and professional gathering which gives him the added advantage over others and said “Hengambu you are very lucky to have such a leader during this very important period of mine development negotiations”.
After these remarks he drew the attention of the meeting to the power point projection of Article 5 Item 4 of the Association constitution on the board. He started by saying that what is projected on the board is copied directly out of the Hengambu Association Constitution. It is neither mine, the presidents nor anybody else but the wisdom of your leaders who drafted your association constitution.
He further stated that it is not only fair but also wise of your leaders to include this important article in your association constitution. It is because of this that the current executives will remain in office to complete the mine development forum and signing of the MOA. Article 5 and item 4 of your own constitution prevents an election during the negotiation period, therefore, the president is standing here before you today. Your usual election will take place within 3 months after the signing of the MOA(CDA).
The president thanked the lawyer for clarifying Article 5 Item 4 to the people. He also told the meeting that after the signing of MOA(CDA) elections will be conducted and any aspiring leaders can contest for all the executive positions. For now, let us all stay united and see this very important period of negotiation through because the Mining Minister Hon. Ano Pala has declared the forum open on 31st August 2023 at the Lae sports stadium.
(Court’s underlining)
Association Constitution – Article concerning “Terms in Office”
With that out of the way the President informed General Meeting about another important resolution that was reached by the Hengambu Leaders meeting held at Value Inn in Lae on the 7th September 2023. This matter is related to the Article concerning the “Term in Office.”
The president informed the General Meeting that the landowner leaders meeting resolved that the term in office will now be increased from three years to five years. He then went further to publicly ask the meeting to take a stand or vote for the resolution made by their leaders on voice.
Michael and Edward Ngatau of Tuko clan from Hekeng village raised the importance of continuity and stability in the leadership of the association to see real development and service delivery.
Mr. Livai Bing of Gingeng added with emphasis that we need quality and competent leadership, and current leader Mr. John Nema fits into this, and said, I now, move that the term of office of the executives be for five(5) years.
Edward Nigatau seconded, and the entire meeting crowd erupted applauded and further endorsed the landowner leaders meeting resolution to extend the term of office from three years to five years.
All members of the association in attendance of 561 voted unanimously for the amendment on this to take effect immediately. The members further appointed the Association Lawyer, Mr. Kusip of Kusip Lawyers to immediately effect changes to this amendment and register with IPA the amended Constitution.
Lawyer Mr. Kusip thank the Association members and in turn advise them that Kusip Lawyers will tasked their agent in Port Moresby, Mr. Malis Miningi who will register the amended Constitution and do other changes with IPA.
The president took the time to thank the Hengambu people for having confidence in him and pledged to work extra hard to deliver and take the negotiation of landowner benefits to the next level. He told the meeting that with this resolution the lawyer will amend the association constitution concerning “term in office” from three years to five years and file IPA at the earliest possible time. The meeting applauded loudly again as sign of approval.
108. Given the reasons set out in this decision and the contents of the above Minutes it is noted that the presiding Judge quite properly raised the issue of contempt of court by Mr. Nema and Mr. Kusip. His Honour chose, as he was entitled to do, to make orders with the objective of resolving the matter in the interests of the community rather than pursue the issue of the contempt of court. Accordingly, this Court will make no further comment with respect to the issue of contempt other than place its concerns on the public record.
109. However, this Court has formed the view that Mr Kusip’s conduct is such that it requires the investigation of the Papua New Guinea Law Society and will so order.
110. FRANK J: I agree that the appeal be dismissed, the orders of Justice Hartshorn made on 19 February 2024 be discharged and that Mr Nema pays the costs of the appeal to be taxed, if not agreed.
111. The background to and the orders the subject of the appeal is covered in the joint judgment of Toliken J and Carmody J.
112. The notice of appeal pleads that the appeal is against the orders of the primary judge made on 14 July 2023 (at para 40 of the joint judgment), 8 September 2023 ((at para 49 of the joint judgment)) 17 October 2023 (at para 65 of the joint judgment) and 20 November 2023 (at para 67 of the joint judgment).
113. The grounds of appeal (restated) are that the primary judge erred in mixed fact and law when he:
a) (i) held that the term of office of the executive committee of the second appellant had expired, and (ii) ordered that an election for the executive committee be conducted;
b) failed to consider and apply article 5 section 4 of the constitution of the second appellant;
c) failed to consider sufficiently or at all and apply the fact that the executive committee headed by the first appellant have been and are still engaged in negotiations at the development forum for the signing of agreements related to the Wafi-Golpu Project;
d) failed to consider sufficiently or at all and apply as a fact that the second appellant is the representative of the customary
owners of the portion of land designated as the SML 10 area for the Wafi-Golpu Project.
114. In the originating summons, the appellants as plaintiffs sought the relief reproduced in paragraph 22 of the joint reasons. The
relief sought necessarily raised for consideration the application of the provisions of the constitution relating to the election
of the committee and their tenure in officer and the rights of the members of the second appellant in ensuring that those provisions,
particularly articles 4 and 5, are observed.
115. When these provisions are considered against the relief sought in the originating summons, the issues which are apparent are whether:
a) notwithstanding article 5 section 2, if the executive is appointed in a month after March of the third year since the last election as provided for in this section, the term of its members does not end in March by virtue of section 2 but in the month in which the executive was in fact elected;
b) the calling and convening of an annual general meeting or any meeting of the second appellant which does not comply with
article 4 or an order of a court of competent jurisdiction is valid.
116. These provisions and the relief sought also raise a question of fact as to whether development forum negotiations were then
in progress.
117. When these provisions and the relief sought in the originating summons are viewed against the grounds of appeal, it is clear that the grounds of appeal are directed at the primary judge’s determination of 14 July 2023.
118. The subsequent orders of 17 October 2023 and 20 November 2023 were for the purpose of ensuring compliance with the orders of 14 July 2023.
119. It is for these reasons that I agree that the notice of appeal is incompetent as it has been filed out of time.
ORDERS OF THE COURT
120. The Court makes the following orders
________________________________________________________________
Lawyers for the appellants: Strat Serv Legal
Lawyers for the respondents: Aisi Lawyers
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