Review Pursuant to Section 155(2)(b) of The Constitution; Application by Michael Aike, Ipa Kanoge, Bogia Pumpume and Dasenko Yomage on Behalf of Themselves and on Behalf of The Members of Kafe Clan of Kainantu, Eastern Highlands Province (2004) SC753

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Salika J, Gavara–Nanu J, Mogish J
• Judgment Date: 02 July 2004
• Citation: (2004) SC753
• Judgment Number: SC753
• Year: 2004
• Docket Number: SC Review No 11 of 2004

Full Title: SC Review No 11 of 2004; Review Pursuant to Section 155(2)(b) of The Constitution; Application by Michael Aike, Ipa Kanoge, Bogia Pumpume and Dasenko Yomage on Behalf of Themselves and on Behalf of The Members of Kafe Clan of Kainantu, Eastern Highlands Province (2004) SC753

Supreme Court: Salika J, Gavara–Nanu J, Mogish J

Judgment Delivered: 2 July 2004

1 CONSTITUTIONAL LAW—Application for review—s155(2)(b) of the Constitution—Circumstances in which inherent powers of the Supreme Court under s155(2)(b) may be invoked.

2 Avia Aihi v The State (No 1) [1981] PNGLR 81, Avia Aihi v The State (No 2) [1982] PNGLR 44, Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s155(2)(b) (1998) SC572, Jonathan Kumba v Kuk Kuli (2000) SC641, Independent State of Papua New Guinea v Colbert [1988] PNGLR 138, TST Holdings Pty Ltd v Tom Pelis (1997) SC534 referred to

___________________________

SC

PAPUA NEW GUINEA

[ IN THE SUPREME COURT OF JUSTICE ]

SC REVIEW NO: 11 OF 2004

SC753

REVIEW PURSUANT TO

SECTION 155(2) (b) OF THE CONSTITUTION

APPLICATION BY MICHAEL AIKE, IPA KANOGE,

BOGIA PUMPUME AND DASENKO YOMAGE

ON BEHALF OF THEMSELVES AND

ON BEHALF OF THE MEMBERS OF KAFE CLAN

OF KAINANTU, EASTERN HIGHLANDS PROVINCE

Waigani : Salika, Gavara-Nanu & Mogish JJ.

2004 : 26th May, 28th June, 02nd July

CONSTITUTIONAL LAW – Application for review – Section 155(2)(b) of the Constitution – Circumstances in which inherent powers of the Supreme Court under s. 155(2)(b) may be invoked.

Cases cited :

Avia Aihi -v- The State [1981] PNGLR 81.

Avia Aihi -v- The State (2) 1982 PNGLR 45

Application by Ludwig Patrick Shulze SC-572

Johnathan Kumba -v- Kuk Kuli & Electoral Commission of Papua New Guinea SC- 641

The State -v- Colbert [1988] PNGLR 138.

TST Holdings Pty Ltd -v- Siew Tan & Ors. SC 534

Counsel.

S. Kaule for the applicants

J. Murray for the first respondent

I. Shepherd for the second respondent.

BY THE COURT : This is an application by the applicants pursuant to s. 155 (2) (b) of the Constitution seeking leave of the Court to invoke its inherent discretionary powers to review the National Court decision made on 12th December, 2003, in the matter of OS No. 593 of 2003.

In their application, the applicants are seeking Orders that the Consent Orders made by the National Court on 12th December, 2003, to be quashed and the matter of OS No. 593 of 2003, be remitted back to the National court to be heard de novo.

Those Consent Orders are in these terms :-

1. The plaintiffs be included in the Memorandum of Agreement (MOA) with respect to the Kainantu Gold Mining Project under the definition of “Associated Landowners”.

2. The duly appointed representative of the plaintiffs executes the MOA on behalf of the Kafe Clan as an associated landowner representative.

3. The injunctive Orders made on 3rd November, be discharged forthwith.

4. The time of entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

The applicants make this application because they are disputing the Consent Orders. They say, the Orders were obtained without their consent and further, the Orders only make them Associated Landowners. They say, this relegates them to minor landowners status which entitles them to claim only 10% of the mining royalties from the Kainantu Gold Mining. The applicants say, they are principal landowners and thus are entitled to 60% of the royalty monies, as provided under the Memorandum Of Agreement.

The respondents argued that the Consent Orders were granted by the National Court in accordance with the claims made by the plaintiffs in the Originating Summons in OS No. 593 of 2003.

It is to be noted that in relief No. 2 of the Originating Summons in OS No. 593 of 2003, the applicants who were the plaintiffs sought declaration that they were the principal landowners of the Kainantu Gold Project area on the basis that their status as the principal land owners was recognized by the Goroka Local Land Court in the decision made in 1992.

Ms Murray for the First Respondent however argued that the Goroka Local Land Court decision which the applicants rely on relates to a different land and not the land on which the Kainantu Gold Project sits. Ms Murray submitted that the Goroka Local Land Court decision which was given in 1992 relates to a land between Maniape and Aracompa land. But the land affecting the Kainantu Gold Project is called Irumafimpa.

The record of the proceedings of the Goroka Local Land Court made on 26th May, 1992, appears at page 280 of the Appeal Book and it shows clearly there that the name of the land for which the applicants were declared the principal landowners is indeed between Maniape and Aracompa land. This lends support to Ms Murray’s argument.

In this regard, there is also evidence that the official declaration made by the Eastern Highlands Provincial Administration Division of Lands and Surveys dated 24th August, 2001, shows that, after surveys and investigations were done on the Bilimoia land in which the EL 470 – Irumafimpa prospect sits, the applicants’ clan which is Kafe is not one of the principal impact area landowners.

Ms Murrary told the Court that the issue of land ownership over the Irumafimpa land is now before the Land Titles Commission. Therefore the issue of ownership over Irumafimpa land is yet to be determined by the Land titles Commission. This is not denied by the applicants.

At the outset we should make it clear that the power to determine the ownership of Irumafimpa land does not lie with this Court. It comes under the jurisdiction of the Land Titles Commission and therefore we do not have the power to determine as to whether the applicants are the principal landowners of the subject land. That is a matter which will be decided by the Land Titles Commission.

But the issue before us is whether this Court can review the decision of the National Court given on 12th December, 2003, which granted the Consent Orders and to quash those Consent Orders. This requires a closer look at the evidence that is before the Court to see whether the Consent Orders were made with the consent of the applicants and upon their instructions. The applicants say that they did not instruct their lawyer to obtain the Consent Orders nor did they consent to them.

We note that in the Memorandum Of Agreement which was signed on 6th February, 2004, all interested parties in the gold mining project which included the State, the Eastern Highlands Provincial Government, the Kainantu Rural Local Level Government, Highlands Kainantu Ltd, Bilimoia Landowners Association and the Associated Landowners are signatories to it. We also note that in page 31 of the Agreement, a representative of the applicants’ clan also signed that Agreement. So the applicants’ clan is a signatory to that Agreement which entitles the applicants to claim 10 % of the royalty monies as provided under clause 3.1 of that Agreement.

As to the denial by the applicants that they gave instructions to their lawyers to obtain the Consent Orders, we have received an affidavit sworn by Mr Ben Lomai who was the lawyer acting for the applicants at the time when the Consent Orders were obtained. And in the affidavit, Mr Lomai deposes that he received instructions from the applicants over a period of time during which the applicants were desperate to be included in the Agreement. And as a result of those instructions, he obtained the Consent Orders on their behalf on 12th December, 2003. He also confirms in his affidavit that he on behalf of the applicants took out restraining Orders against the State from having the Agreement executed in the absence of the applicants as a party. Mr Lomai deposes in the affidavit that when the Consent Orders were obtained on 12th December, 2003, the restraining Orders were dissolved.

The affidavit evidence by Mr Lomai has not been challenged in any way by the applicants, it therefore stands unopposed. In that regard we asked the applicants’ lawyer during hearing as to whether he wanted the matter adjourned so that he could seek instructions from his clients on the matters deposed by Mr Lomai in his affidavit, in case the applicants needed to reply to Mr Lomai’s affidavit evidence. Indeed the Court was adjourned briefly for that, so that...