Kanga Kawira v Kepaya Bone

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 05 July 2017
• Citation: (2017) N6802
• Court: National Court
• Year: 2017
• Judgement Number: N6802

Full : OS No 64 of 2015; Kanga Kawira of the Hewa sub clan of Kutage Tribe, Hela Province and for and on behalf of the Kutage Tribe v Kepaya Bone of the Alipe sub clan of the Ere Clan of Kutage Tribe & Heto Arepa of the Ingayapa sub clan of the Ere Clan of Kutage Tribe and Department of Lands and Physical Planning and Romily Kila Pat – Secretary for Lands & Physical Planning and Sam Taison – Registrar for Lands & Physical Planning and Simon Malu – Director for Land Acquisition, Department of Lands & Physical Planning and John Kisu – Highlands Regional Manager, Department of Lands & Physical Planning (2017) N6802

National Court: Kandakasi, J

Judgment Delivered: 5 July 2017

N6802

[PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 64 of 2015

BETWEEN

KANGA KAWIRA of the Hewa sub clan of Kutage Tribe, Hela Province and for and on behalf of the Kutage Tribe

Plaintiff

AND

KEPAYA BONE of the Alipe sub clan of the Ere Clan of Kutage Tribe & HETO AREPA of the Ingayapa sub clan of the Ere Clan of Kutage Tribe

First Defendants

AND

DEPARTMENT OF LANDS AND PHYSICAL PLANNING

Second Defendant

AND

ROMILY KILA PAT – Secretary for Lands & Physical Planning

Third Defendant

AND

SAM TAISON – Registrar for Lands & Physical Planning

Fourth Defendant

AND

SIMON MALU – Director for Land Acquisition, Department of Lands & Physical Planning

Fifth Defendant

AND

JOHN KISU – Highlands Regional Manager, Department of Lands & Physical Planning

Sixth Defendant

Waigani: Kandakasi, J.

2016: 20th July

2017: 05th July

LAW OF BUSINESS ASSOCIATIONS - Incorporated Land Groups -Requirements for incorporation of – Public, transparent and open process – Intended to ensure all persons having an interest and or stand to be affected are informed, their views are received and considered before incorporation – Challenge against incorporation – Onus on persons incorporating an ILG to demonstrate meeting of all statutory requirements – Failure to do so means requirements not met. Incorporation liable to be declared a nullity and set aside – Incorporated Land Groups Act, ss. 1,5,8,5B,33,6 and 5A .

LAW OF BUSINESS ASSOCIATIONS - Incorporated Land Groups – Only recognized incorporated entity for customary landowning groups – Acquisition by State and or developments on or affecting customary land and their landowners - Duties of the State and developers – State, including the Registrar of ILGs and developer under an obligation to properly ascertain and organise customary landowners into ILGs and obtain their social license for their investment and project’s security – Process adopted to incorporate ILGs must be open and transparent with all interested and persons who stand to be affected fully participating – No acquisition or any major development on customary land should occur without first properly organising the landowners into ILGs – Lands Act 1996 s.13 and Oil and Gas Act 1998 s.47, 169 (2) (b) and 176 (3) (f).

LAWYERS – Duties and responsibility of lawyers – Duty to resolve matters promptly and avoid unnecessary delays and increased costs – ADR Rules providing a process to assist lawyers to properly and meaningful discharge their duties and responsibilities – Lawyers role is to follow orders for mediation, before during and after conduct of mediation – Breach of – Client to determine if lawyer should reimburse fees and costs forced upon them by lawyers failures – National Court Act ss.7A-7E - Professional Conduct Rules r. 8 (6) and (7) and r. 15 (2), (4) (a) and (b) and (10) - ADR Rules, rr. 5 (2) 9(3), and 10 (7).0

MEDIATION – Unlike a court process mediation process is future focused whilst forgiving and building from the past by exploring all options and settling upon one most workable – An open and transparent process for all parties and persons with interest and standing to be affected - Capable of establishing the truth in the presence and scrutiny of all parties and persons in possession of the truth - Most suitable process for resolution of cases involving customary landownership and other rights –All the members of a land owning or interest group in dispute can attend.

MEDIATION - Mediation ordered - Bad faith at mediation – Repeated failures to attend appointed dates for intake for mediation – Repeated failures to comply with Court orders amounting to clear case of contempt – Bad faith certificate issued – Defaulting party maintaining arguments already raised and considered by the Court before ordering mediation - No satisfactory and reasonable explanation for bad faith and contemptuous conduct offered – No issue warranting resolution by trial presented – Most suitable case for mediation but fair opportunity not given – Mediation reordered at defaulting parties costs - Parties ordered to return to mediation and give it fair chance with warnings of contempt of court proceedings if the same defaulting parties and their lawyer default again.

PNG Cases cited:

Alex Bernard & P’Nyang Resources Association Inc. v. Hon. Nixon Duban, MP, Minister for Petroleum & Ors (2016) N6299.

Akipa & Os v Lowa & Os [1990] PNGLR 502.

Abel Constructions Ltd v. W.R. Carpenter (PNG) Ltd (2014) N5636.

Alex Awesa & Anor v. PNG Power Limited (2014) N5708.

Barrick (Niugini) Ltd v John Tole Pokoli (2015) SC1438.

Belden Norman Namah v. Rimbink Pato (2016) SC1497.

Hii Yii Ann v. Canisius Kami Karingu (2003) SC718.

Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301.

John Kotape & Ors v. McConnell Dowell Construction PNG Ltd & Ors (2016) (unreported and yet to be numbered judgement of Logan, Kandakasi and Neil).

Ken Norae Mondiai v. Wawoi Guavi Timber Company Limited (2007) N3120.

Kerry Lerro trading as Hulu Hara Investments Limited v. Philip Stagg, Valentine Kambori & The State (2006) N3050.

Koitaki Plantations Ltd v. Charlton Ltd trading as Kookabura Meats & Stuart Fancy (2014) N5656.

Leo Maniwa & Ors. v. Aron Malijiwi & Ors. (2013) N5687.

Maniosa Yakasa v. David Piso (2014) SC1330.

Michael Pundari v. Niolam Security Ltd (2011) SC1123.

Maniosa Yakasa v. David Piso (2014) SC1330.

Michael Pundari v. Niolam Security Ltd (2011) SC1123.

Meckpi v. Fallon and Dekenai Constructions Ltd (2017) N6708.

Moi Avei v. Charles Maino [2000] PNGLR 157.

Mt Hagen Local Level Government v. Sek No.15 (2009) SC 1007.

Motor Vehicles Insurance (PNG) Trust v. Waige, Jack and Gedua [1995] PNGLR 202.

Mineral Resources Development Company Ltd v. Mathew Sisimolu (2010) SC1090.

New Britain Oil Palm Ltd v. Vitus Sukuramu (2008) SC946.

Nathan Koti & Ors v. David Susame & Ors (2015) N5860.

Nathan Koti & Ors v. David Susame & Ors (2017) N6586.

Philip Takori & Others v. Simon Yagari & 2 Others (2008) SC 905.

Papua New Guinea Banking Corporation v. Tole (2002) SC 694.

Public Officers Superannuation Fund Board v. Sailas Imanakuan (2001) SC677.

Rimbink Pato v. Reuben Kaiulo (2003) N2455

Simon J Solo v. Amkat Mai; John Taluh Tekwie v. Amkat Mai (2013) N5562

The State v. Isaiah Guda (2015) N5955.

The State v. Tony Tomong (2011) N5140.

The State v. Moses Jafisa Winga (No 1) (2005) N2952.

Wilson v. Howard [1994] PNGLR 418.

Wantok Gaming Systems Ltd v. National Gaming Control Board (2014) N5809.

Legislation:

Land Group Incorporated Act CH: 147

Counsel:

E. Komia, for the Plaintiffs

J. Kumara, for the First Defendants

J. Siki, for the Second to Sixth Defendants

05th July, 2017

1. KANDAKASI J: The Plaintiffs are seeking mainly a declaration that the incorporation of two Incorporated Land Groups (ILGs), Ere and Hewa ILGs by the First Defendants, are illegal, unlawful, null and void ab initio. This is for failing to meet the mandatory requirements of the Land Groups Incorporation Act (Chapter 147) consolidated to No 29 of 2009 (ILG Act).

Unless otherwise specified all reference to legislative provisions will be from the Act.

11 The ILGs were incorporated to pursue and receive compensation monies due to the original customary land owners from the State for an acquisition of their land now describe as Portion 88C and 89C, Millinch Hoyevia, Fourmil Wabag, Hela Province (the Land). It is now accepted that, the land is State land. Convinced that this matter is most suitable for resolution by mediation with no issue warranting judicial determination presented, the Court ordered it to be resolved by mediation. However, consistent with their attitude of not wanting to go to mediation, the First Defendants and their lawyers failed to turn up for mediation intake meetings on three different occasions. Consequently, the Court appointed mediator issued a “bad faith” certificate against them. The matter is now before the Court for the Court to decide what consequence should follow the First Defendants’ bad faith under r.10 (7) of the ADR Rules.

Parties Arguments

2. The First Defendants argue that, the Court erred in ordering mediation at the first place when they raised the issue of customary land...