Peter Mangope and Others v William Bando and Others

• Jurisdiction: Papua New Guinea
• Judge: Tamade AJ
• Judgment Date: 14 October 2022
• Neutral Citation: N10035
• Citation: N10035, 2022-10-14
• Counsel: Mr Lyons Putupen, for the Plaintiff,Mr Victor Nape, for the Defendants
• Hearing Date: 28 September 2022,14 October 2022
• Docket Number: OS NO. 65 OF 2020
• Court: National Court

N10035

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 65 OF 2020

Between:

Peter Mangope

First Plaintiff

and

Jack Bom Tongope

Second Plaintiff

and

John Tipa

Third Plaintiff

and

Alopea Mokai

Fourth Plaintiff

v.

William Bando

First Defendant

and

Hela Provincial Government

Second Defendant

Waigani: Tamade AJ

2022: 28^th September; 14^th October

ALTERNATIVE DISPUTE RESOLUTION — consent order to enforce mediated agreement — invalid mediated agreement — consent of other parties not included — National Court Rules — Order 12 Rule 40 — abuse of process

PROFESSIONAL CONDUCT — lawyer's duty to the Court — Professional Conduct Rules 1989 — Rule 3, 4 and 15 (2) — breach of Lawyers Professional Conduct Rules — referral to Lawyers Statutory Committee and police — Plaintiffs referred to police for deposing to untrue statements in affidavit

Cases Cited:

Peter Mangope and Others v Rolence Maprik Haba and Ors (2015) SC1459

Legislation:

Professional Conduct Rules 1989

Counsel:

Mr Lyons Putupen, for the Plaintiff

Mr Victor Nape, for the Defendants

Putupen & Associates: Lawyers for the Plaintiffs

Hela Provincial Government In-house Lawyers: Lawyer for the Defendants

14^th October, 2022

1. Tamade AJ: This matter was set down for a substantive hearing on 28 September 2022. On that day, Mr Putupen who represented the Plaintiff and Mr Nape who represented the Defendants appeared in Court before me and handed up Consent Orders that they say if endorsed by this Court will resolve this matter. I then had the matter adjourned to decide whether to endorse the Consent Orders or not as counsels had relied on a Mediation Agreement in a related proceeding in which they say forms the premise of the Consent Orders. After reserving a decision on the matter to allow my Associate to conduct due diligence on the matter to confirm with the ADR Centre on the mediated agreement that parties are relying on, the ADR Centre has responded to the veracity of the subject mediated agreement that parties have relied on, and this is now the decision of the Court as to the Consent Order handed up from counsels.

2. The pleadings in the Plaintiffs' Originating Summons refer to a proceeding described as WS No. 386 of 2013 which counsels claim that those proceedings were successfully concluded by parties signing a mediated agreement on 13 November 2018 after resolution of appeals in SCA No. 117 of 2014 and SCA No. 36 of 2016.

3. The Originating summons also states that parties had signed Consent Court Orders way back in May 2019 for the Court to issue orders for the Registrar of the National Court to release the balance of the K10 million held in the National Court Trust Account.

4. The Plaintiffs also claim in their Originating Summons that in WS 386 of 2013, the Deputy Chief Justice, His Honour Mr Ambeng Kandakasi and the Chief Magistrate Mr Mark Pupaka had signed a Certificate of Mediation in Form 2 in WS 386 of 2013 on 9 July 2019. They, therefore, claim that this is conclusive evidence that the mediated agreement they rely on in WS 386 of 2019 is valid. It is on this basis that the Plaintiff's claim that the National Court Registrar is to release a payment of K10 million held in the Trust Account of the National Court in proceedings WS No. 386 of 2013 to the law firm of Lyons Putupen & Associates Lawyers Trust Account to make payments in line with the mediated agreement in WS 386 of 2013.

5. The Plaintiffs also seek a discontinuance of WS 386 of 2013 in addition to an order seeking that a feasibility study be conducted by a team of professionals under the supervision of Putupen & Associates as to how the newly formed Tari Airport ILG could meaningfully participate in the development of the Tari township as a beneficiary of the PNG LNG UBSA Agreement signed in Kokopo.

6. The Plaintiff also seeks judgment for costs for Putupen & Associates in the sum of K215 000 with Daniel Kop Lawyers which they say are due and payable to date as debts due and they also seek 8 percent interest on these costs and that this sum be paid from the balance of the funds held in Trust in the National Court Trust Account in WS 386 of 2013.

7. Mr Putupen of the Plaintiff has handed up to the Court a written submission to assist the Court understand the background of the matter and the basis of the Consent Orders that the parties seek to be endorsed by the Court. I also take into account the Affidavit of Jack Bom Tongope filed on 13 July 2020 who is the First Plaintiff in these proceedings and the Affidavit of Peter Mangope filed on 23 February 2022 who has deposed to matters in relation to the mediation in WS 386 of 2013 and in which Mr Putupen relies on as evidence to make submissions. Mr Tongope and Mr Mangope both refer to proceedings WS 386 of 2013 that a Court Annexed mediation was held in January 2014 and was completed in September 2014, some eight years ago.

8. Mr Putupen refers to WS 386 of 2013 as a claim whereby the Plaintiffs in those proceedings sought compensation over what they say was the unlawful acquisition of the Tari Township. Mr Putupen submits that a sum of K10 million was paid into the National Court Trust Account in WS 386 of 2013 to resolve the landowner issues to do with the Tari Township ownership. A portion of those funds was allocated to run the mediation as between the parties and the other portion was to be deposited in a short-term bearing deposit account with any of the commercial banks in trust for the benefit of the landowners. There were also payments made out of these funds in trust to law firms representing various parties for their fees in the mediation. Mr Putupen claims that his firm Putupen & Associates never received any of these funds and therefore they are claiming for their fees to be paid from those funds.

9. It is Mr Putupen's contention that parties cannot go back to WS 386 of 2013 as those proceedings were concluded by mediation and the Court is now functus officio.

10. The Affidavit of Mr Jack Bom Tongope also states that the lead Plaintiff one Mr Rolence Maprik Haba in WS 386 of 2013 did not get the consent of all landowners or clan members to file the WS 386 of 2013.

11. On review of this matter to better understand this case, there is an Affidavit of one Rolence Maprik Haba filed on...