George Poio in his capacity as Porgera District Administrator and Acting General Manager for Porgera Development Authority and Hon Leo Bilip Kuala, MPA as President of Porgera Rural Local Level Government v Aken Puluku and Mande Kaima and Jones Pawe and Henry Lara and Rex Epenes Nakipen (2020) SC1968

• Jurisdiction: Papua New Guinea
• Judge: Lindsay & Shepherd JJ
• Judgment Date: 02 July 2020
• Court: Supreme Court
• Citation: (2020) SC1968
• Docket Number: SCA No 156 of 2017
• Year: 2020
• Judgement Number: SC1968

Full Title: SCA No 156 of 2017; George Poio in his capacity as Porgera District Administrator and Acting General Manager for Porgera Development Authority and Hon Leo Bilip Kuala, MPA as President of Porgera Rural Local Level Government v Aken Puluku and Mande Kaima and Jones Pawe and Henry Lara and Rex Epenes Nakipen (2020) SC1968

Supreme Court: Lindsay & Shepherd JJ

Judgment Delivered: 2 July 2020

SC1968

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 156 OF 2017

BETWEEN:

GEORGE POIO in his capacity as Porgera District Administrator and Acting General Manager for Porgera Development Authority

First Appellant

AND:

HON. LEO BILIP KUALA, MPA
as President of Porgera Rural Local-Level Government
Second Appellant

AND:

AKEN PULUKU

First Respondent

AND:

MANDE KAIMA

Second Respondent

AND:

JONES PAWE

Third Respondent

AND:

HENRY LARA

Fourth Respondent

AND:

REX EPENES NAKIPEN
Fifth Respondent

Waigani: Lindsay & Shepherd JJ

2018: 1st May

2020: 2nd July

APPEAL –Practice and Procedure – Objection to Competency of Appeal – Grounds of Objection: (i) non-compliance with Section 4(2) and Section 14(1)(c) of Supreme Court Act (ii) non-compliance with Order 7 Rule 8, Rule 9(e) and Form 8 of Supreme Court Rules 2012–whether Appeal incompetent and should be dismissed– grounds of appeal pleaded with sufficient particularity – no error of fact involved - leave to appeal not required – notice of appeal compliant as to form – Appeal competent - Objection dismissed.

Held:

(1) To determine which parties must be named in an appeal to ensure compliance with Order 7 rule 9(e) and Form 8 of the Supreme Court Rules 2012, analysis should be made by the intending appellant as to which of the parties in the proceedings below have active interests which could be affected by the challenge on appeal to the order made by the court below.

(2) If parties not named in a notice of appeal assert that they have an active interest in the outcome of the appeal, they may apply for joinder.

(3) It is sufficient compliance with Order 7 rule 9(e) of the Rules for the parties to be cited by their names in the intituling of a notice of appeal. It is optional for the capacities in which they are cited to be included after their names.

(4) In the present case, the grounds of appeal were pleaded with sufficient particularity and the form of notice of appeal complied with the Rules. The appeal was not incompetent.

Cases Cited:

Papua New Guinea Cases:

Imambo Alo v Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 1

Michael Kuman v Digicel (PNG) Ltd (2017) SC 1638

Jimmy Lama & Anor v NDB Investments Ltd (2015) SC1423

Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221

Pacific Equities & Investments Ltd v Teup Goledu ((2009) SC962

Jeffrey Turia v Gabriel Nelson (2008) SC949

The State v John Talu Tekwie (2006) SC843

PNG Forest Authority v Securimax Ltd (2003) SC717

Haiveta v Paias Wingti (No. 2) [1994] PNGLR 189

Cox v Cox (2012) SC1187

Talibe Hegele for and on behalf of the Yumbi Incorporated Land Group v David Yawe for and on behalf of the Lapilape Sogofani Incorporated Land Group & Ors Unreported decision of Makail, Logan and Polume-Kiele JJ in SCM No 04 of 2019 delivered 2 September 2019

Simon Kou & Ors v Simon Kaupa (2010) SC1021

Overseas Cases

British Launderers’ Research Association v Central Middlesex Assessment Committee and Hendon Rating Authority (1949) 1 All ER 21

Legislation cited:

Supreme Court Act Chapter 37, sections 4(2), 14(1)(c), 42

Supreme Court Rules 2012, Order 7 rules 8, 9(c),10; Form 8.

Counsel:

Ms J. Nandape, for First Appellant

Mr P.H.Pato, for Second Appellant

Mr N. Saroa, for First and Third Respondents

Mr P. Harry, for Second and Fourth Respondents
No appearance for Fifth Respondent

02 July, 2020

1. BY THE COURT: INTRODUCTION: Before this Court is an objection to the competency of the notice of appeal filed by the first appellant on 14 November 2017. The notice of objection was filed by the first and third respondents on 4 December 2017.

2. The objection to competency of the appeal was heard by this Court on 18 May 2018. The Bench comprised Justice Kassman, Justice Lindsay and Justice Shepherd, whose decision was reserved.

3. In early 2020 Justice Kassman’s judicial appointment expired before delivery of the Court’s reserved decision could take place. On 20 May 2020 counsel for the parties appeared before Justice Shepherd and informed the Court pursuant to Section 3 of the Supreme Court Act that it was their unanimous agreement that this appeal should continue before Justice Lindsay and Justice Shepherd and that the Court’s reserved decision on the competency of the appeal should be delivered by the remaining two judges.

The Appeal

4. The dispute between the parties relates to the purported invalidity of the appointment of Aken Puluku, Jonas Pawe, Mande Kaima and Henry Lara to the board of the Porgera Local Level Government Special Purpose Authority, also known as the Porgera Development Authority (PDA).

5. The PDA was established for the benefit of customary landowners within the Special Mining Lease (SML) area for the Porgera gold mine. The PDA manages, among others, the Porgera SML Landowners Trust Account and the Porgera SML Young Adults Trust Account which are funded from royalties derived from the operations of the Porgera gold mine.

1. 2. 3. 4. 5.

6. Messrs Puluku and Pawe representing the Porgera Rural Local Level Government and Messrs Kaima and Lara representing the Paiela/Hewa Rural Local Level Government, assert that they were validly appointed to the board of the PDA at meetings conducted by their respective LLGs which were held on 7 April 2017 and which had been called by Porgera Deputy District Administrator Mr Epenes Rex Nakipane (also named as Mr Epenes Rex Nakipane) on 5 April 2017. Mr Nakipane gave notice of the meetings for the two LLGs in the temporary absence of Porgera District Administrator Mr George Poio.

7. The presidents of the Porgera Rural LLG and the Paiela/Hewa Rural LLG, Leo Bilip Kuala and Pera Mopa, have challenged the validity of those appointments which they say are void because only they as presidents of their LLGs have legal authority to call meetings for members of their LLGs to appoint representatives to the board of the PDA, which in this instance they did not do.

8. Messrs Kuala and Mopa instituted proceeding OS No. 418 of 2017 in the National Court at Waigani on 21 April 2017 citing Messrs Puluku, Pawe, Kaima, Lara and the PDA as defendants. The principal claims for relief sought by Messrs Kuala and Mopa as first and second plaintiffs in OS No. 418 of 2017 were these:

· a declaration that the president of a local level government (LLG) has power to call an LLG meeting pursuant to the Organic Law on Provincial and Local-level Governments and the Local-level Governments Administration Act 1997;

· a declaration that Messrs Kuala and Mopa did not call meetings for the Porgera Rural LLG and the Paela/Hewa Rural LLG on 7 April 2017 at which Messrs Puluku, Pawe, Lara and Kaima were appointed as members of the PDA;

· a declaration that the meetings purportedly held on 7 April 2017 by the Porgera Rural LLG and the Paela/Hewa Rural LLG are null and void;

· an order that the appointments of Messrs Puluku, Pawe, Kaima and Lara as members of the board of the PDA on 7 April 2017 are null and void;

· a permanent injunction restraining Messrs Puluku, Pawe, Kaima, Lara and Nakipane from calling any meetings for the purpose of appointing representatives of the Porgera Rural LLG and the Paela/Hewa Rural LLG as members of the board of the PDA;

· a permanent injunction restraining Messrs Puluku, Pawe, Kaima, Lara and Nakipane from performing any functions, duties or roles in connection with the PDA, including making withdrawals or any transactions on PDA’s bank account[s] until a proper board of the PDA is appointed in accordance with a statutory direction dated 4 April 2017 made by the Minister responsible for LLGs and Special Purpose Authorities, Hon. Sir Leo Dion.

1. 2. 3. 4. 5.

9. On 25 April 2017 Messrs Puluku and Kaima, asserting that they had been validly appointed as board members of the PDA, countered OS No. 418 of 2017 by commencing National Court proceeding OS No. 436 of 2017 against Mr Poio in his capacity as the Porgera District Administrator. Messrs Puluku as first plaintiff and Kaima as second plaintiff, citing the PDA as third plaintiff, sought orders:

· to restrain Mr Poio and associated persons from taking any steps to facilitate the appointment of members of the PDA through their respective appointing agencies pending determination of the proceeding;

· that they liaise with the other board members of PDA to urgently convene a meeting within 7 days to appoint an interim chairman of the PDA pending the appointment of a permanent chairman pursuant to section 7(5) of the PDA’s Constitution;

· that Messrs Puluku and Kaima be declared as duly appointed board members of PDA pursuant to section 4 of the PDA Constitution.

6. 7. 8. 9.

10. On 3 May 2017 Messrs Kuala and Mopa obtained an ex parte ...