N8564

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 548 OF 2018

BETWEEN:
MARK TONY EKEPA
First Plaintiff

NIXON MANGAPE
Second Plaintiff 

LONDE EKALE
Third Plaintiff

KEN POS
Fourth Plaintiff

PALA TEYA
Fifth Plaintiff

MASO KARIPE
Sixth Plaintiff

AND:
RUBEN LOLI NALEPE
First Defendant 

JOHN KULINA
Second Defendant

MARKUS TEKAIPA 
Third Defendant

KULE LAYO
Fourth Defendant

PERA ITAWI
Fifth Defendant

SAMUEL PAWAIPA
Sixth Defendant

UNJALI KOAKALI
Seventh Defendant

KURUBU IPARA
Eighth Defendant

JONATHAN PARAIA 
Ninth Defendant

HENRY LARA 
Tenth Defendant

JOHN ONDALANE 
Eleventh Defendant

Waigani:  Shepherd J
2019:  7th May
2020: 7th October

PRACTICE AND PROCEDURE – application to dismiss proceeding – Order 12 Rule 40(1) National Court Rules – mode of proceedings – nature of relief sought - originating summons procedure inappropriate where declaratory relief sought will not resolve underlying dispute – pleadings required to determine core matters in issue - originating summons inappropriate where there is substantial dispute of facts –abuse of Court’s process – proceeding dismissed 

JUDICIAL DECLARATIONS – declaratory relief pronounces on existence of legal rights but is non-coercive – Court should decline to grant declaratory relief if judicial declarations sought do not resolve core issues in dispute between the parties 

EVIDENCE – two different constitutions of association incorporated under Associations Incorporation Act Chapter 142– insufficiency of proof on civil standard of which constitution prevails or if any earlier constitution is operative to regulate holding of meetings of the association or its executives

Cases Cited:
Papua New Guinea Cases

Application by John Mua Nilkare, Review Pursuant to S.155(4) of the Constitution [1998] PNGLR 472
Boochani v Independent State of Papua New Guinea (2017) SC1566
Bros Rugby Football Club Inc v Port Moresby Rugby Football Union Inc (2004) N2537
Fangau v Bank of South Pacific Ltd (2012) N4847
Ipara v Yaluma (2010) N4277
Lamana Development Ltd v Kavana (2007) N3180
Masive v Kenderop [1985] PNGLR 105
NCDIC v Bogibada Holdings Pty Ltd [1987] PNGLR 135
Ok Tedi Mining Ltd v Niugini Insurance Corporation (No. 2) [1988-89] PNGLR 45
Pundia v ANZ Banking Group (PNG) Ltd (2015) N6140
Rageau v Kina Finance Ltd (2015) N6175
Shengtai Investments Ltd v Chen Jing (2017) N6753
Telikom PNG Ltd v ICCC (2007) N3144
TS Tan v Elcom (2002) SC683
Waghi Mek Plantations Ltd v Mundiye (2011) N4383
Waigani Heights Development Ltd v Mul (2018) 7162

Overseas Cases:

Gouriet v Union of Post Office Workers [1977] 3 All ER 70
Rivers v Bondi Junction-Waverly RSL Sub-branch Ltd (1986) 5 NSWLR 362

Text:

de Smiths Judicial Review of Administrative Action (2013) 7th Ed. Sweet & Maxwell

Counsel:  

Mr Paul Mawa, for First, Second, Third, Fourth and Fifth Plaintiffs
Ms Judy Nandape, for Sixth Plaintiff
Mr Andrew S. Kostopoulos with Justin Haiara, for First & Second Defendants
Mr Paul Harry, for Eight, Ninth, Tenth & Eleventh Defendants

DECISION
7th October, 2020

1.	SHEPHERD J:  This is a decision on two motions which came before the Court on 7 May 2019.  The first motion is an application by the 1st and 2nd defendants who are seeking the summary dismissal of this proceeding, together with various consequential orders. The application to dismiss is opposed by all plaintiffs.  The second motion is an application by the 1st to 6th plaintiffs for Mark Tony Ekepa, the 1st plaintiff, to in effect be declared the team leader to represent customary landowners in negotiations with the State and other authorities for the renewal of the Special Mining Lease for the Porgera Gold Mine in Enga Province which was said to expire on 12 May 2019.The plaintiffs by their application before this Court are also seeking an order to allow their lead team to access funds held in bank accounts of the Porgera Landowners Association Inc (PLOA) which were restrained under prior interim orders made in this proceeding. 

Preliminary observations 

2.	The dispute which underlies this proceeding has a protracted history of litigation between the same and similar parties.  There are 24 customary landowner sub-clans who are lawfully entitled to benefits derived from the Porgera Special Mining Lease area for the Porgera Gold Mine.

3.	The PLOA was incorporated as an association under the Associations Incorporation Act Chapter 142 on 17 November 1992. Each of the 24 sub-clans has a Land Negotiating Committee (LNC) agent who is a voting member of the PLOA and is termed a “financial member” of the Association.  

4.	The plaintiffs in this proceeding claim to all be legitimate voting members of the PLOA.  The defendants, who represent the interests of members of a not-for-profit company named the Justice Foundation For Porgera Ltd (JFFPL) incorporated on 25 March 2014, also claim to be entitled to membership in the PLOA and to be able to lawfully vote at meetings held by the PLOA.

5.	The plaintiffs, represented by their spokesman Mark Ekepa, the former chairman of the PLOA, are generally in favour of the renewal of Barrick (Niugini) Limited’s Special Mining Lease (SML). The future of any renewal of the SML is currently the subject of controversial negotiations and litigation between Barrick (Niugini) Limited, the State and other stakeholder entities. The defendants disagree with the plaintiffs and are vehemently opposed to the renewal of the SML unless the concerns of members of the JFFPL are able to be ventilated and taken into account in the negotiation process.  The defendants incorporated JFFPL for the express purpose of that company being recognized as the representative of its members’ interests by the State, Barrick (Niugini) Limited and related entities. 

6.	To better understand the present dispute between the parties, it needs to be seen in context with certain of the litigation which has preceded this OS No. 548 of 2018.  I now review two of those earlier cases.

Consolidated proceedings:
(1)	OS No. 813 of 2014: Justice Foundation for Porgera Ltd v Porgera Development Authority
(2)	OS No. 906 of 2014: Justice Foundation for Porgera Ltd v Mark Tony Ekepa, Michael Yandapake & Porgera Landowners Association Inc.

7.	The JFFPL filed OS No. 813 of 2014 on 20 November 2014 seeking a raft of orders against the Porgera Development Authority (PDA).  The orders which the JFFPL sought included judicial declarations recognizing its incorporated status as a company owned by 14 LNC agents representing 14 of the sub-clans within the SML area of the Porgera Gold Mine; that JFFPL was duly appointed by virtue of a power of attorney given to it by the 14 LNC agents representing 14 of the 24 sub-clans from the SML area; and that the PDA had breached its fiduciary obligations to the 14 LNC agents represented by the JFFPL.  The JFFPL also sought orders that the PDA provide a detailed account of all royalty funds held in its trust account on behalf of the 14 LNC agents derived from monies paid by the operators of the Porgera Gold Mine and that a trust deed be prepared to regulate and manage trust funds held by the PDA on behalf of the 14 LNC agents represented by the JFFPL. 

8.	Soon after instituting OS No. 813 of 2014 against the PDA, the JFFPL commenced OS No. 907 of 2014 against Mark Tony Ekepa (Mr Ekepa), Michael Yandapake (Mr Yandapake) and the PLOA on 24 December 2014.  This time round the JFFPL sought similar judicial declarations to the effect that the JFFPL is a corporate entity owned by 14 LNC agents representing 14 of the 24 sub-clans within the SML area of the Porgera Gold Mine, those agents having been appointed by their respective 14 sub-clans.  These 14 LNC agents were said to be “financial members” of the PLOA, which entitled them to voting rights at meetings conducted by the PLOA.  It was the intention of these 14 LNC agents that the JFFPL be their authorised representative for their bloc at meetings of the PLOA as well as for negotiations with the State and others on matters relating to the SML for the Porgera Gold Mine. 

9.	The JFFPL also sought orders in OS No. 907 of 2014 to the effect that: 

•	all transactions carried out by Mr Ekepa as chairman of the PLOA and by Mr Yandapake as public officer of the PLOA since 1998 be voided because the terms of all office bearers of the PLOA, including the offices held by Mr Ekepa and Mr Yandakape, were said to have expired in 1998
•	an urgent Annual General Meeting (AGM) for the PLOA be conducted within 21 days to vote new office bearers
•	Mr Ekepa and Mr Yandakape be permanently injuncted from asserting themselves as chairman, public officer or holding any other office within the PLOA until ordered otherwise by the National Court.

10.	On 10 February 2015 Kandakasi J (as he then was) ordered that the parties meet in conference in an endeavour to resolve issues in dispute, and failing resolution the parties were directed by his Honour to return to Court on 11 March 2015 with a draft order for mediation under the National Court’s ADR Rules to take place at Porgera commencing on 13 March 2015.  The JFFPL was not represented at that hearing.

11.	When the matter returned before his Honour on 11 March 2015, the parties were not ready to hand up a draft mediation order.  The JFFPL was again not represented at that hearing. 

12.	After several more adjournments, on 23 April 2015 Justice Kandakasi made an order for the consolidation of OS No. 813 of 2014 with proceeding OS No. 907 of 2014(the consolidated proceedings) as the issues, although involving different defendants, were based on similar causes of action arising from disputes alleging mismanagement of royalty payments payable to customary landowners from the Porgera Gold Mine.  His Honour’s order of 23 April 2015 directed the parties in the consolidated proceedings to mediation under the ADR Rules.  The terms of that mediation order were detailed and extensive.  In summary, his Honour directed that an AGM for the PLOA and mediation conferences be held at a location at Porgera.  His Honour appointed accredited mediators his Worship Deputy Chief Magistrate (Lands) Mark Pupaka and Mr Andrew Kwimberi to conduct the two mediations and to chair the AGM for the PLOA. The Registrar of Companies was ordered to attend the mediation conferences and the AGM for the PLOA.  The parties and their lawyers, the mediators and the Registrar of Companies were required by the mediation order to agree by no later than 14 May 2015 on the dates for the mediations and the AGM to take place, and that these were to commence by the end of May 2015 and be concluded no later than the end of June 2015 at a venue at Porgera to be agreed.  His Honour directed that for these purposes the JFFPL was to be represented by Jonathan Paraia and his lawyer, the PDA was to be represented by John Miukin and his lawyer and the PLOA and Mr Yandapake (the former public officer of the PLOA) were to be represented by Mr Ekepa and his lawyer. The matter was ordered to return before his Honour on 3 June 2015 for update. 

13.	Of critical importance was term 2 of Justice Kandakasi’s order in the consolidated proceedings made on 23 April 2015, which stated:
“2.	The 24 sub-clans who are the customary land owners of the current Porgera Special Mining Lease shall in separate meetings facilitated by the mediators appointed under term 3 of these orders resolve the issues of:
(a)	who are the legitimate 24 LNC Agents and entitled to constitute and be involved in the affairs of the Association; and
(b)	whether each of the sub-clans wish to have the current arrangements for the receipt and management of their royalties and other benefits [from] the Porgera Gold [Mine] continue or have a new arrangement and determine what that new arrangement is as well as any issues of concern to them.”				[emphasis added]

14.	The mediation between the parties was conducted by his Worship Mark Pupaka and Andrew Kwimberi at Wabag and Porgera between 21 May 2015 and 27 December 2015, with the assistance of an intervening order which was made by Justice Kandakasi on 3 June 2015 that allowed certain mediation expenses and legal fees to be paid from the PLOA’s bank accounts, thereby varying an earlier interim restraining order which had “frozen” the PLOA’s bank accounts. 

15.	The order for mediation was unsuccessfully challenged by the JFFPL in the Supreme Court.  The mediation eventually resumed on 26 and 27 December 2015 and a mediated settlement agreement was signed by most of the parties on 27 December 2015.  Of the 24 sub-clans and LNC agents represented at that resumption of the mediation, only two LNC agents did not sign the mediated settlement agreement.  These were Kule Layo for the Pulamani Ambo Waliya sub-clan and Andita Keko for the Pulumani Yunga sub-clan.   The agreement was however signed by representatives of the PDA and by the lawyers for the defendants in the consolidated proceedings, Ms Nandape and Mr Mawa.  The agreement was also signed by the Porgera Police Station Commander and a community representative as external witnesses to the execution of the mediated agreement.  No-one signed the agreement for or on behalf of the JFFPL.

16.	On 21 December 2017, almost two years later, Justice David presided at the hearing of a series of interlocutory motions in the consolidated proceedings. One of those motions was an application by the PLOA in OS No. 907 of 2014 seeking an order pursuant to Rule 12(2)(a) of the ADR Rules that effect be given to the terms of the mediated settlement agreement reached at the conclusion of the mediation on 27 December 2015 and that the PLOA, Mr Ekepa and Mr Yandakape be allowed access to the PLOA’s bank accounts to “promote the objectives and purposes” of the PLOA. 

17.	On 9 January 2018 Justice David delivered his reserved decision on the PLOA’s interlocutory application to enforce the mediated settlement agreement.  His Honour dismissed the application, thereby nullifying the whole of the mediation process.  His Honour’s reasons for decision centred on the requirements prescribed by Rule 12 of the ADR Rules that enforcement of a mediated settlement is dependent on the parties having agreed on a resolution of all or part of the proceedings, the agreement must be in writing and the agreement must be signed by or for each party.  It was not in dispute that although the PDA and PLOA had signed the mediated settlement agreement, it was not signed by the JFFPL. His Honour found that the third of these pre-conditions for enforcement had not been met. The mediated settlement agreement, which Justice Kandakasi had so actively directed the parties to pursue to resolve their many differences, was found by Justice David to be unenforceable.  

18.	Justice David also observed in his reserved interlocutory decision in OS 907 of 2014 delivered on 9 January 2018 at p. 47 as follows:

“Another consideration that I consider relevant in the exercise of my discretion in the present case is the conduct of the JFPPL in the entire mediation exercise.  There is no doubt that a case of bad faith exists against JFPPL.  Its conduct can be assessed in its attempts to set aside the order for mediation and non-participation at the mediation. JFPPL makes that admission in its evidence and through Mr Haiara’s submissions.  A certificate of bad faith ought to have been issued by the mediators.”

19.	OS No. 907 of 2014 then progressed to substantive hearing. The case was heard by Justice David on 9 and 10 May 2018.  His Honour delivered his reserved decision a month later, on 9 June 2018.  In the result, his Honour dismissed the whole of the proceeding in OS No. 907 of 2014.  His Honour found that the JFFPL had been incorporated on a date after the date on which a certain power of attorney was signed, the JFFPL having relied on that power of attorney in its endeavours to establish its authority to represent the 14 LNC agents who were said to have signed the power of attorney.  His Honour also found other defects with the power of attorney.  His Honour accordingly ruled that the JFFPL lacked standing to have instituted and prosecuted that case against Mr Ekepa, Mr Yandakape and the PLOA.  

20.	When delivering his final decision in OS No 907 of 2014, Justice David gave careful consideration to all 16 affidavits filed by the parties in that proceeding.  In total, there were 12 affidavits filed for JFFPL and 4 affidavits for the PLOA.  

21.	I observe that his Honour made specific reference during the course of his decision to evidence given by Mr Jonathan Paraia, who is the 9th defendant and one of the deponents who has given affidavit evidence in this present proceeding OS No. 548 of 2018.  His Honour noted that Mr Paraia stated in his affidavit evidence in OS No. 907 of 2014 that the 14 LNC agents who were then the shareholders of JFFPL were also financial members of the PLOA.  Mr Paraia said that clan royalty payments were paid by the Porgera Gold Mine to the PLOA for distribution among the 24 LNC agents.  His Honour continued at p.9 of his decision, referring to matters deposed to in Mr Paraia’s affidavit: 

“21. 	Each of the 14 shareholders of JFFPL is either one of the original 24 landowner agents or a person who has become an agent through application of customary laws of succession and related traditions following the death of one of the original landowner agents.  The 24 landowner agents appointed through that process become automatic members of PLOA.
22.	The 14 landowner agents supporting JFFPL are concerned that both PDA and PLOA have, for some time been mismanaged particularly with regard to; the distribution of royalty payments from the Porgera Gold Mine; no AGMs have been held for many years by PLOA, there has been no auditing of accounts or the production of financial statements in accordance with its Constitution and law governing incorporated associations in Papua New Guinea; there has been unauthorised spending of PLOA’s funds amounting to millions of kina and no transparency in the management of the affairs of PLOA; PLOA funds have been inappropriately paid to Mr Ekepa and his associates; PLOA Constitution was amended without following proper process particularly without the consent of the 14 landowner agents supporting JFFPL; and the amended PLOA Constitution was registered on the basis of manufactured meeting minutes.
23.	Since 1995, over K43 million which constitutes 12% of the total royalty has been misappropriated: annexure C, Exhibit A, Porgera Booklet Information 2012 produced by Barrick PNG.”

22.	Although not directly denied, Mr Ekepa in his affidavit evidence in reply in OS 907 of 2014, strenuously challenged Mr Paraia’s evidence and was recorded at p.19 para. 66 of His Honour’s decision as stating:

“66. 	PLOA has held a number of annual general meetings since its establishment in 1992, Some of its AGMs were conducted as scheduled while one was conducted pursuant to an order of the Court in 2006 for the election of its Chairman. The suggestion by Jonathan Paraia in his affidavit sworn on 15 December 2014 and filed on 24 December 2014 (Exhibit A) that no AGMs have been conducted since the establishment of PLOA is factually incorrect.  Jonathan Paraia is not a financial member of PLOA.  He has no knowledge about the operations and affairs of PLOA and therefore he has no actual or constructive knowledge of the veracity and truth of the matters deposed to in his affidavit.” 

23.	However, before making the Court’s formal order for the dismissal of OS No. 907 of 2014 on 9 June 2018, his Honour made the following obiter remarks at p.30 of his decision: 
“Given the undisputed fact that the term[s] of office for the Executive Office Bearers of PLOA having long expired, an annual general meeting or special general meeting should be convened as soon as possible pursuant to the Constitution of PLOA particularly Clauses 18 (annual general meeting) and 20 (general meetings) to elect the new Executive Office Bearers.”

24.	I refer later in my decision to the feasibility or otherwise of this recommendation which his Honour made in OS No. 907 of 2014 being carried into legal and practical effect.

Substantive relief sought by the Plaintiffs in OS No. 548 of 2018 – the Originating Summons

25.	Turning now to the substantive relief which is sought in this proceeding OS No. 548 of 2018 filed on 10 August 2018, the plaintiffs have claimed a series of judicial declarations which can be summarised as follows: 

(1)	That the AGM of the PLOA held at the Crown Plaza Hotel in Port Moresby, NCD on 17 July 2018 at 10.00 am is void for illegality because it was convened and conducted:

(a)	in defiance of the interlocutory order of Justice Kariko made in this proceeding on the morning of 17 July 2018;

(b)	when there was no quorum of persons present to lawfully constitute the membership of the PLOA in breach of clause 18(e) of the Constitution of the PLOA;

(c)	by non-financial members of the PLOA and LNC agents of the PLOA pursuant to clauses 5(g) and 18(e) of the Constitution of the PLOA who are not recorded by the Investment Promotion Authority (IPA) as registered financial members and landowner agents of the PLOA.

(2)	That the proper and genuine financial members and LNC agents of the PLOA are those persons who are named in the list contained at clause 5(g) of the Constitution of the PLOA and in records held by the IPA, being persons who represent the 24 sub-clans of the 7 major clans who are customary landowners and come from the SML area for the Porgera Mine.

(3)	That the current executives of the PLOA whose terms have expired but who remain as financial members and LNC agents of the PLOA shall call for the AGM for the PLOA pursuant to the Constitution of the PLOA.

OS No. 548 of 2018 – the two motions presently before the Court 

26.	Shortly after the plaintiffs filed this proceeding OS No. 548 of 2017 on 10 August 2018, an ex parte interim injunction was granted by Justice Kariko on 18 August 2018 which restrained the defendants from holding themselves out as the newly appointed executives of the PLOA elected at the disputed AGM held on 17 July 2018 or from conducting any business on behalf of the PLOA or from changing signatories on two nominated bank accounts operated by the PLOA with the Bank of South Pacific Ltd.  The ex parte interim injunction also ordered that no persons, including the plaintiffs and the defendants, were permitted to transact or withdraw funds from those PLOA bank accounts. 

27.	The ex parte interim injunction of 18 August 2018 which “froze” the PLOA’s two bank accounts was extended by Justice Kassman on 20 September 2018 and that injunction currently remains in full force and effect until further order of this Court. 

28.	On 9 January 2019 the plaintiffs via Mawa Lawyers filed their motion in this proceeding seeking orders under Order 12 Rule 1 of the National Court Rules (NCR) and s.155(4) of the National Constitution that leave be granted to Mr Ekepa to represent the Porgera Special Mining Lease Landowners as Team Leader in matters involving the renewal of the Porgera Mining Tenement pending the final determination of this proceeding and that the Court-ordered freeze on the PLOA’s two accounts with the Bank of South Pacific Ltd be lifted so as to allow the Lead Team headed by Mr Ekepa to access funds to meet their expenses.

29.	The 1st and 2nd defendants represented by Haiara’s Legal Practice countered the plaintiffs’ application by filing their present motion on 22 January 2019 claiming orders pursuant to NCR Order 12 Rule 40(1), (a), (b) and (c) and NCR Order 12 Rule1 that this proceeding be dismissed in its entirety because: 
(a)	no reasonable cause of action is disclosed; and or
(b)	the proceeding is frivolous and vexatious; and or
(c)	the proceeding is an abuse of process.
30.	By their motion for dismissal, the 1st and 2nd defendants were also seeking orders that the plaintiffs’ lawyers be restrained from acting for the plaintiffs in any matter involving the PLOA and the Porgera Special Purpose Authority or in any other matter involving issues and disputes relating to the Porgera Gold Mine and the Porgera landowners.  Further, the defendants’ motion was seeking orders restraining the plaintiffs from tampering with the records of the PLOA held at the office of the Registrar of Companies and from commencing the same or similar proceedings as this proceeding against the defendants, as well as an order dissolving the earlier ex parte interim injunction granted by Justice Kariko on 18 August 2018,which was extended by Justice Kassman on 20 September 2018. 
31.	The plaintiffs’ motion seeking orders that Mr Ekepa be entitled to represent the Porgera Special Mining Lease Landowners as Team Leader and the defendants’ motion seeking dismissal of this proceeding both came on for hearing before me on 7 May 2019.  Mr Paul Mawa appeared for the 1st to 5th plaintiffs.  Ms Judy Nandape appeared for the 6th plaintiff. Mr Andrew Kostopoulos of the NSW Bar appeared with Mr Justin Haiara for the 1st and 2nd defendants.  Mr Paul Harry appeared for the 8th to 11th defendants.  
32.	It was agreed at the commencement of the hearing on 7 May 2019 that the defendants’ motion would be heard first, because if the proceedings were dismissed then the plaintiffs’ motion would be subsumed in the dismissal.  But if the proceedings were not dismissed, I would then proceed to rule on the plaintiffs’ motion.

33.	At the outset of the hearing, Mr Kostopoulos of counsel for the 1st and 2nd defendants informed the Court that the defendants would not be pursuing the first of the orders sought in their motion which were directed towards restraining Mr Mawa and Ms Nandape from acting for the plaintiffs.  However, Mr Kostopoulos stated that the 1st and 2nd defendants, supported by the 8th to 11th defendants, would continue to press for orders:
•	to dismiss the proceedings
•	to restrain the plaintiffs from tampering with the records of the PLOA held at the Office of the Registrar of Companies
•	to restrain the plaintiffs from instituting the same or similar proceedings against the defendants on the same or similar grounds
•	to dissolve the ex parte interim injunctive order obtained by the plaintiffs on 18 August 2018, as extended on 20 September 2018, which “froze” the PLOA’s two accounts with the Bank of South Pacific Ltd. 

The Affidavit Evidence

34.	The hearing of the two motions on 7 May 2019 was conducted by affidavit evidence. This was in accordance with term 10 of a directions order which I made on 8 March 2019. Copies of the affidavits filed by the parties in support of their respective applications are contained in an extraordinarily lengthy Motions Book which spans 5 volumes and comprises1,145 pages.   

35.	The Motions Book filed on 2 May 2019 was certified correct for the purposes of the hearing of the two motions by Mr Paul Mawa, lawyer for the 1st to 5th plaintiffs; by Ms Judy Nandape, lawyer for the 6th plaintiff; by Mr Justin Haiara, lawyer for the 1st and 2nd defendants and by Mr Paul Harry, lawyer for the 8th to 11th defendants. 

36.	The defendants relied on a total of 12 affidavits for the two motions before the Court.   The plaintiffs correspondingly relied on 11 affidavits.

37.	The following affidavits filed in this proceeding, listed according to date of filing, were adduced in evidence at the hearing of the defendants’ motion for dismissal and the plaintiffs’ motion for orders seeking to declare Mr Ekepa to be team leader and for access to PLOA’s bank accounts: 

Affidavits relied on by the defendants: 

1)	First affidavit of 1st defendant Mr Nalepe sworn and filed on 23 October 2018.

2)	First affidavit of 11th defendant John Ondalone sworn on 15 October 2018 and filed on 16 October 2018.

3)	Affidavit of 8th defendant Kurubu Ipara sworn on 18 October 2018 and filed on 19 October 2018.

4)	First affidavit of 9th defendant Jonathan Paraia sworn on 18 October 2018 and filed on 19 October 2018.

5)	Affidavit of technical lands officer Jeffery Puge sworn on 18 October 2018 and filed on 19 October 2018 in response to Affidavit of District Administrator Morie Iarume (see item 15 in list of plaintiffs’ affidavits below).

6)	Affidavit of deponent purporting to be Jolson Kutato, agent for Angalain Piko Clan sworn on 22 October 2018 and filed on 23 October 2018 (but see conflicting affidavit by another deponent claiming to be Jolson Kutato in item 16 in list of plaintiffs’ affidavits below). 

7)	Affidavit of customary landowner Nelson Akiko, agent for Tiyeni-Wangialo Clan sworn on 22 October 2018 and filed on 24 October 2018. 

8)	Second affidavit of 1st defendant Mr Nalepe sworn on 19 November 2018 and filed on 21 November 2018.

9)	Third affidavit of 1st defendant Mr Nalepe sworn and filed on 22 January 2019.

10)	Second affidavit of 9th defendant Jonathan Paraia sworn on 21 January 2019 and filed on 22 January 2019.

11)	Second affidavit of 11th defendant John Ondalone sworn on 21 January 2019 and filed on 22 January 2019.

12)	Fourth affidavit of 1st defendant Mr Nalepe sworn on 28 March 2019 and filed on 29 March 2019 in response to second affidavit of Mark Ekepa.

Affidavits relied on by the plaintiffs:

13)	First affidavit of 1st plaintiff Mr Ekepa sworn and filed on 10 August 2018. 

14)	Affidavit of 2nd plaintiff Nixon Mangape sworn and filed on 10 August 2018.

15)	Affidavit of District Administrator Morie Iarume sworn on 4 October 2018 and filed on 5 October 2018.

16)	Affidavit of a different deponent purporting to also be Jolson Kutato, former chairman of PLOA and former agent for Angalain Piko Clan sworn and filed on 26 October 2018, alleging that Ken Pos was appointed by PLOA board in 2004 as agent for Angalain Piko Clan and in effect alleging that the deponent having the same name as Jolson Kutato who signed the affidavit which is item 6 in the above list of affidavits filed for the defendants is an imposter.  

17)	First affidavit of Buk Pepa Yambu sworn and filed on 26 October 2018.

18)	Second affidavit of 1st plaintiff Mr Ekepa sworn on 8 January 2019 and filed on 9 January 2019.

19)	Second affidavit of Buk Pepe Yambu sworn on 8 January 2019 and filed on 9 January 2019.

20)	Affidavit of Wesly Yosia sworn on 8 January 2019 and filed on 9 January 2019.

21)	Third affidavit of 1st plaintiff Mr Ekepa sworn and filed on 22 March 2019 in response to first affidavitof Mr Nalepe.

22)	Affidavit of 3rd plaintiff Londe Ekale sworn on 4 April 2019 and filed on 5 April 2019.

23)	Fourth affidavit of 1st plaintiff Mr Ekepa sworn on 4 April 2019 and filed on 5 April 2019.

38.	At the commencement of the hearing I allowed the 1st defendant Mr Nalepe to be cross-examined on his second, third and fourth affidavits as Mr Mawa wished to put a series of questions to him as a notice for cross-examination in respect of those affidavits had already been issued and served under the Evidence Act. The result of that cross-examination, which initially was in English but completed in Pidgin with the assistance of one of the Court’s interpreters, was that Mr Nalepe identified his subject three affidavits as having been sworn by him. He confirmed on oath the truth of their contents.  No cross-examination of any of the other deponents whose affidavits were before the Court was sought by counsel for the remaining parties.

Issues raised by the Defendants’ motion for dismissal and the Plaintiffs’ motion for interim orders to allow Mr Ekepa to represent the PLOA as team leader and to access funds held in frozen bank accounts of PLOA 

39.	The defendants assert that Mr Nalepe was validly appointed as chairman of the PLOA at the purported AGM held at the Crown Plaza Hotel in Port Moresby (now known as the Crown Hotel) on 17 July 2018 because it is said quorum and membership voting requirements of the PLOA’s Constitution were properly observed.

40.	The plaintiffs contend that all resolutions passed at the purported AGM of the PLOA which was convened at the Crown Plaza Hotel on 17 July 2018, which included the election of Mr Nalape as chairman of the PLOA, are void because quorum and membership voting requirements of the PLOA’s Constitution were not met.

41.	The plaintiffs further contend that Mr Ekepa is now the current “team leader” of the PLOA elected as such at a special meeting of the Association which was convened at the behest of certain of the plaintiffs at the Edgewood Hotel, East Boroko, NCD on 13 December 2018.  The validity of that special meeting and the resolutions passed at that meeting are disputed by the defendants.

42.	It is clear that any determination of the issues raised by the defendants in their motion for dismissal now before the Court, as with the issues raised by the plaintiffs in their present motion and indeed their originating summons, require the Court to focus on the Constitution of the PLOA to ascertain: 

(1)	is the PLOA presently functional?

(2)	if so, what is the procedure under the Constitution of the PLOA for the calling of the AGM which was convened at the Crown Plaza Hotel on 17 July 2018, and was that procedure followed?

(3)	assuming that the PLOA is presently functional, who, if any, were the voting members of the PLOA lawfully entitled to vote, or lawfully capable of voting, at the AGM of the PLOA which was convened on 17 July 2018?

(4)	whether executives of the PLOA whose terms have expired have power under the Constitution to call for an AGM to be convened?

(5)	if the PLOA is not presently functional, what is the utility of this proceeding and should it be dismissed under NCR Order 12 Rule 40(1) and Order 12 Rule 1, thereby disposing of both motions?

Consideration 

43.	The difficulty with issues (1) to (4) which I have just identified from the vast amorphous mass of affidavit material now before the Court and the parties’ respective submissions is that there are two different Constitutions for the PLOA which are said to be operative and which have been placed in evidence before the Court.

44.	There is serious controversy between the plaintiffs and the defendants as to which Constitution of the PLOA provides the legal framework for the governance of the membership, appointment of executive officers, funding, convening of meetings and powers of the Association.  The Constitution of the PLOA relied on by the plaintiffs is the one which was purportedly registered by the Registrar of Companies on 14 November 2013 (the 2013 Constitution). The defendants deny the validity of the 2013 Constitution and seek to rely on an earlier Constitution of the PLOA which was registered by the Registrar of Companies on 11 May 2009 (the 2009 Constitution).  A comparison between these two versions of the Constitution for the PLOA is therefore relevant to determine what changes, if any, exist between them which could impact the outcome of both motions before the Court.  The question I therefore pose is this: Is the Court in a position in this proceeding to properly assess whether either of the two versions of the Constitution now in evidence is lawfully operative and in force? 

45.	Mr Ekepa, in his first affidavit sworn on 10 August 2018, refers at length to the decision which was delivered by Justice David in OS No. 907 of 2014 on 9 June 2018.  Mr Ekepa says, with reference to that decision:

“16.	The Court identified the three major issues at page 25 of His Honour’s judgment and they were:
	1.	Whether the Plaintiff has locus standi to institute these proceedings?
	2.	Who should call the annual general meeting of the PLOA?
	3.	Who should attend the annual general meeting of the PLOA?
	…
18.	Although the said judgment correctly said the term of office for the Office Bearers of PLOA have long expired and an annual general meeting or special general meeting should be convened as soon as possible pursuant to the Constitution of PLOA particularly Clauses 18(annual general meeting) to elect new Executive Office Bearers but the questions for who to call the AGM for the PLOA and who can attend the AGM remains unanswered.

19.	I therefore instituted this proceeding [OS No. 548 of 2018] so that the PLOA Constitution and the law must be respected and every conduct of the PLOA must be done according to law and every affair of the PLOA must be transparent and mutual.”								[emphasis added]

46.	Annexed to Mr Ekepa’s first affidavit and marked “H” is the 2013 Constitution of PLOA.

47.	Mr Nalepe in his affidavit material in reply takes serious exception to Mr Ekepa’s reliance on the 2013 Constitution of the PLOA.  This is what Mr Nalepe has to say in his first affidavit sworn on 22 January 2019:

“5.	The Judgment of David J in the 907 proceedings refers to and is predicated on the existence of the 2009 Constitution of the PLOA, as annexed to the Affidavit of Jonathan Paraia sworn 15 December, 2014 in the 907 proceedings (see paragraphs (4), (7), (30), (50), and (88)(ii) to (88)(v) of the Judgment).

6.	There was no serious challenge in the 907 proceedings by Mr Mawa and or his client that the relevant Constitution was not the 2009 Constitution which was relied upon by all parties, including his Honour, in those proceedings.

7.	Summarising Mr Mawa’s clients evidence in his judgment, his Honour made reference to the 2009 Constitution and also discussed its operation.

8.	Both Mr Mawa and his client (through his evidence), allowed the Court to believe and accept that the 2009 Constitution was the valid Constitution of the PLOA.

9.	In the current proceedings and for the first time the Plaintiffs has introduced into evidence the existence of a purported 2013 Constitution which has been annexed to the Ekepa affidavit (“Annexure [H])”.

10.	The Plaintiffs now seek to rely on the existence of that 2013 Constitution (and in particular, the inclusion of additional alleged members of the PLOA that were not referred to in [the] PLOA Constitution) in an effort to persuade the Court that the Defendants did not achieve a quorum at the Annual General Meeting on 17 July 2018.
	…
12.	In addition, according to the IPA records, the 2013 Constitution was registered on the IPA register on or about 14 November 2013, four years after the alleged 27 September 2009 meeting that was purportedly convened to amend the Constitution.

13.	The lodgement of the Constitution four years after the purported meeting is in breach… of Section 17(2) of the Associations Incorporations Act 1996, in that the Public Officer of the PLOA failed within one month of the purported meeting on 27 September 2009 to comply with the requirements of Section 17(2) of the Associations Incorporation Act 1996.

14.	Further, as noted in the judgment, His Honour made reference to the term of office of Mark Ekepa expiring in 2007 (see paragraph 30 of the judgment), which was the position advanced by the Plaintiffs in those proceedings. …
…
16.	Further I say that:

	(a)	the term of office held by Mark Ekepa and his executives of PLOA had expired in 2007;

	(b)	any act by Mark Ekepa since 2007 in a purported executive capacity was done without authority;

	(c)	any meetings called by Mark Ekepa for and/or on behalf of PLOA are invalid and any resolutions purported to have been passed at those meetings are of no effect, including without limitation any purported meetings in 2007 and the purported meeting in 2007 to approve any amendments to the Constitution.”

48.	Most of the above statements extracted from Mr Nalepe’s first affidavit are in the nature of submissions so I place little or no weight at all on those statements themselves as direct evidence of facts, except that I do agree that Justice David predicated his decision in OS No. 907 of 2014 delivered on 9 June 2018 on the basis that the evidence before the Court at that time as to the Constitution of the PLOA which was in force was the 2009 Constitution of the PLOA, not the 2013 Constitution. This is because during the course of the proceeding in OS No. 907 of 2017 Mr Ekepa himself relied on the 2009 Constitution of the PLOA, not the 2013 Constitution.

49.	When summarising Mr Ekepa’s evidence for the PLOA in OS No. 907 of 2014, Justice David said in his decision, at pp. 17 and 19: 

“SUMMARY OF EVIDENCE OF PLOA

Mark Tony Ekepa (Exhibit 1)

52.	He is the first defendant, and the Chairman of PLOA.
…
55.	PLOA has its own Constitution and it is registered with the Office of the Registrar of Companies.  A copy of the Constitution is annexed to the affidavit of Jonathan Paraia sworn on 15 December 2015 and filed on 24 December 2015 as annexure “B”.
…
65.	The membership of PLOA is set out under Clause (5) of the Constitution.  JFFPL is not prescribed under that Clause as a member of PLOA.”

50.	Annexure “B” of Jonathan Paraia’s affidavit in OS No. 907 of 2014 is the 2009 Constitution of PLOA.  It is therefore clear that even Mr Ekepa was relying on that Constitution as being the proper Constitution in force at the time the hearing of JFFP’s claims in OS No. 907 of 2014 took place before Justice David on 9 and 10 May 2018.  His Honour makes no reference in his subject decision to any 2013 Constitution of the PLOA.

51.	Mr Ekepa has provided an extensive reply to Mr Nalepe’s allegations. Annexed to Mr Ekepa’s second affidavit sworn on 22 March 2019 and respectively marked “I” and “J” are what he contends are true copies of the 2009 Constitution and the 2013 Constitution of the PLOA.

52.	Mr Ekepa deposes in his second affidavit as follows: 
“26.	The question whether the 2009 PLOA Constitution or the 2013 PLOA Constitution is reliable and applicable to this proceeding, is not necessary because, in fact there is/are no major amendments to the PLOA Constitution and besides all Clauses are the same except Clause 5(g).
…
 27.	The Clause 5(g) of the PLOA Constitution lists the financial members of the PLOA Inc so the Defendants are of the view that the financial members of PLOA Inc are as listed in Clause 5(g) of the 2009 Constitution and we are of the considered view that the financial members of the PLOA Inc are as listed in Clause 5(g) of the 2013 PLOA Constitution.

 28.	In facts [sic], this is precisely one of the major issues before the Court.

 29.	The 2009 PLOA Constitution can be used but Clause 5(g) of the 2009 PLOA Constitution is not applicable or reliable because some of the financial members listed in Clause 5(g) have resigned due to old age, death or resignation and changes were effected accordingly and the Records speak for these changes of the financial members. (Please refer to Mori Iarume’s Affidavit – Court Document No. 35).

30.	Unfortunately, the Defendants are trying to meddle in the affairs of the PLOA when they do not have any standing and also are relying heavily on the 2009 Constitution and so adamant that my term as Chairman of PLOA expired in 2007 but failed miserably to detect how the 2009 Constitution came about if there was no AGM or no Executive in 2007.”

53.	Is it correct, as Mr Ekepa alleges, that there are no major amendments in the purported 2013 Constitution which has surfaced in this proceeding when compared with the earlier 2009 Constitution which he relied on in OS No. 907 of 2014? Are all clauses in the 2013 Constitution “the same as those in the 2009 Constitution except for clause 5(g)” as deposed to by Mr Ekepa?

54.	Set out below is a table which identifies the changes which are apparent in the purported 2013 Constitution of the PLOA when compared with the 2009 Constitution. 

PLOA - CONSTITUTION 2009	PLOA - CONSTITUTION 2013	
Clause	Original Text	Clause	Change of Text or Addition of New Text 	
DEFINITIONS	
2(b)	“The Association” means the Porgera Landowners Association (“PLOA”) Inc.”	2(b)
[change of text is underlined]	“The Association” means the Porgera Landowners Association (“PLOA”) Incorporatedwhere as the Porgera Landowners Association Inc., also means the Porgera Special Mining Lease (“SML”) Landowners Association Inc., or any other association or organisation with the same generic name and description that comprises the landowners from the Special Mining Lease (“SML”)Area to  the exclusion of all other persons and entities who may claim or have any interest over the land where the Porgera Gold Mine Project is situated.”	
2(a) to 2(j)	[Definitions of words and terms used in this  Constitution]	2(k)
[new sub-clause inserted]	“Support Staff” means any other technical person assigned by the Chairman, that may form the integral part of the Advisory Committee and also constitute Executive Officers but shall not be part of the Executive Committee.” 	
AIMS & OBJECTIVES 	
3(a) to 3((u)	[Aims & Objectives of PLOA]	3(v)
[new sub-clause inserted]	“Where necessary, the Association may regroup its Membership by means of Incorporated Land Group (ILG) headed by financial members of the Association to fairly and equitably redistribute the benefits or any business ventures or interests provided that the Association supervises and coordinates such exercise or arrangement.”	
4(b)	“The election of the Chairman, Deputy Chairman, Secretary, Treasurer and the eight (8) elected Executive Members must be from the principal Teini clan/tribe in which their land the gold is being mined or extracted by Porgera Joint Venture”.	4(b)
[change of text underlined]	“The election of the Chairman, Deputy Chairman, Secretary, Treasurer and the eight (8) elected Executive Members must be from the Principle SML clan/tribe in which their land has been covered by the SML boundary of the Porgera Joint Venture.”	

FINANCIAL MEMBERS	
5(g)
“The current names of the financial members are stipulated as follows:”
	5(g) 
The current names of the financial members are stipulated as follows:”
[change of Members underlined and marked in bold]	
	NAMES	CLANS	SUB-CLANS	NAMES	CLANS	SUB-
CLANS	
	1.	Wasa Aliape

2.	John Kulina

3.	Kimaleya Ondalane

4.	Londe Ekale

5.	Nixon Mangape

6.	Ipaia Lara

7.	Samuel Pawaipa

8.	Mark Ambi

9.	Ken Pos

10.	Sakaris Kiwale

11.	Markus Tekaipa

12.	Pawe Menepa

13.	Pepa Yambu

14.	Mark Ekepa

15.	Yanale Lare

16.	Pera Irawi 

17.	Kule Layo

18.	Loli Nalepe

19.	Pala Teya

20.	Andita Keko

21.	Eno Menepa 

22.	Unjali Koakali

23.	Maso Karipe

24.	Philip Kapia
	Tieni

Tieni

Tieni

Tiene

Tiene

Tieni

Tuanda

Tuanda

Angalain

Angalain

Angalain

Angalain

Mamai

Mamai

Pulumani

Pulumani

Pulumani

Pulumani

Pulumani

Pulumani

Pulumani

Anga

Waiwa

Waiwa	Waingolo

Lakima

Yangua

Akira

Wuape

Kaimalo

Yapala

Ulupa

Piko

Yakiale

Hulewali

Oyopen

Andapo

Kenza

Ambo-Alu

Ambo-Limbi

Ambo-Waliya

Ambo-Endeme

Paramaba

Yunga

Nalape

Warae

Lunda

Yaliape	1.	Wasa Aliape

2.	John Kulina

3.	Warokos Ondalane

4.	Londe Ekale

5.	Nixon Mangape

6.	Paul Ipaia

7.	Samuel Pawaipa

8.	Mark Ambi

9.	Ken Pos

10.	Sakaris Kiwale

11.	Markus Tekaipa

12.	Anako Menepa

13.	Pepa Yambu

14.	Mark Ekepa

15.	Anton Yanale

16.	Pera Irawi 

17.	Kule Layo

18.	Loli Nalepe

19.	Pala Teya

20.	Andita Keko

21.	Erick W. Eno

22.	Unjali Koakali

23.	Maso Karipe

24.	Philip Kapia
	Tieni

Tieni

Tieni

Tiene

Tiene

Tieni

Tuanda

Tuanda

Angalain

Angalain

Angalain

Angalain

Mamai

Mamai

Pulumani

Pulumani

Pulumani

Pulumani

Pulumani

Pulumani

Pulumani

Anga

Waiwa

Waiwa	Waingolo

Lakima

Yangua

Akira

Wuape

Kaimalo

Yapala

Ulupa

Piko

Yakiale

Hulewali

Oyopen

Andapo

Kenza

Ambo-Alu

Ambo-Limbi

Ambo-Waliya

Ambo-Endeme

Paramaba

Yunga

Nalape/Epeya

Warae

Lunda

Yaliape	
5(a) to 5(i)	[Criteria for membership in PLOA]	5(j)
[insertion of new text]	“Upon receiving a formal resignation letter from any financial member of the Association, the Association shall, pursuant to a Meeting Resolution, advise the membership of the concerned sub-clans in writing by notice and request the concerned sub-clan to submit nominees for election as a financial member. The existing financial members of the Association shall then elect the nominees(s) by formal vote.”	

POWERS OF PLOA
	
6(a) to 6(q)	
[Powers of PLOA}	6(r)
[insertion of new text]	
“To negotiate, review and or execute any Agreement(s) or Contract(s) including the Mining Development Agreement for and on behalf of the members of the Association. Without the prior express consent and approval of the Association, none of its entities, neither third parties nor individual committee members or financial members or membership is allowed to negotiate, execute or review any Agreement or Contract for and on behalf of the association.”	

EXECUTIVE COMMITTEE
	
11(a)	“The business of the Association shall be controlled by an Executive Committee consisting of the Chairman, the Deputy Chairman, the Secretary, the Treasurer and eight (8) elected members provided that the immediate Past Chairman shall be an ex-official member of the Executive Committee.”	11(a)
[change of text underlined]	“The business of the Association shall be managed by its technical officers (support staff) and controlled by an Executive Committee consisting of the Chairman, the Deputy Chairman, the Secretary, the Treasurer and eight (8) elected members provided that the immediate Past Chairman shall be an ex-official member of the Executive Committee.”	
11(d)(i) to 11(d)(ix)	[Powers of Executive Committee]	11(d)(ix) to 11(d)(xii)
[new text inserted has been underlined but note that prior sub-clause 11(d)(ix) has been repeated andre-numbered as sub-clause 11(d)(xii)]
	“(ix)  To advise or inform the Bank in which the Association operates its Account(s) where there are changes to be made due to change of signatories of the Association bank Account(s) or to freeze or stop the Associations bank account(s).

(x)  No individual or group of individuals or entities, howsoever described, have the authority to advise or direct or inform the bank to change the signatures to the bank account(s) or freeze or stop the Associations bank account(s) except by way of a formal resolution to that effect from the Executive Committee of the Association duly signed by the Chairman of the Association.

(xi)  Any financial member, or member(s) of the Executive Committee who give(s) any form of advice or directive or request to the Bank to change the signatures of the bank account of the Association or to freeze or stop the operation of the Associations bank account shall be referred by the Chairman to the Police Fraud Squad for criminal prosecution and or shall be punished under clause 7(b) and as.1(j) of this Constitution.

(xii)  Generally to manage and conduct the business of the Association subject to this [C]onstitution.”
	
11(e)	“The Association shall, within the limits of its financial constraints, pay some form of benefits in monetary value when any member of the Executive Committee or any one of the 24 financial members of the Association and its employees resign, or being terminated or becomes of unsound mind and any such benefit shall be determined by the Executive Committee depending on the period the person entitled under this clause has rendered his services to the Association.”	11(e)
[change of text is underlined and in bold]	“The Association shall, within the limits of its financial constraints, pay some form of benefits in monetary value of K200,000.00 to the financial members and shall pay to Executive members benefits in monetary value of K300,000.00 when any member of the Executive Committee or any one of the 24 financial members of the Association and its employees resign, or being terminated or becomes of unsound mind and any such benefit shall be determined by the Executive Committee depending on the period the person entitled under this clause has rendered his services to the Association.”	
11(o)	“Any person who holds both Executive Positions of the Association shall be entitled to double remuneration per annum at a fee and allowance as agreed to in a meeting resolution by the Executive Committee of the Association.”	11(o)
[omitted] 	
[omitted]	
POWERS & DUTIES OF EXECUTIVE OFFICERS	
12A.   Chairman	12.1   The Chairman	

12.A(h)	[the term “proceeds of settlement” is used in line 4 this sub-clause] 	12A(h)	[the term “proceeds of settlement” has been erroneously replaced with the term “proceeds of statement” in this sub-clause – presumably an editorial error]	
12A(a) to 12A(i) 	[Powers and duties of Chairman]	12.1(j) to 12.1(k) [new text inserted]	“(j)  The Chairman shall have the disciplinary power to forewarn, terminate or expel any employee or member of the Committee where he sees them as a threat to the attainment of the Association objectives and aims or wilfully breaching the letter and spirit of the Constitution of the Association.  The Chairman shall invoke the powers conferred under clause 7(b) of the Constitution to perform this disciplinary function.

(k)  The Chairman shall have the ultimate power to make a final decision in the case of any motion whether to dissolve or not to dissolve the Association but with prior meaningful consultation with the Executive Committees in accordance with clause 28 of this Constitution.”	
12B. Deputy Chairman
	12.2   Deputy Chairman	
12B(a)	[Deputy Chairman to exercise all the powers of the Chairman in his absence]	12.2(b) to 12.2(d)
[new text inserted]	“(b)  However the Deputy Chairman shall only act a Chairman exercising the powers and functions of that office within the limits or sphere or ambit of the powers delegated to him by the substantive or incumbent Chairman other than the power of delegation. 

(c)At no time, shall the Deputy Chairman usurp the powers and functions of the Chairman or remove or replace the substantive or incumbent Chairman form his tenure of position as Chairman of the Association during the period of his absence when the Deputy Chairman is acting in the position.

(d)   Any actions or decisions made by the Deputy Chairman whilst acting as Chairman of the Association that is in breach or violation of the preceding sub clauses under clause 12.2 shall be invalid, null and void and of no legal effect.” 
	
		AUDITORS [2009]                                  AUDITOR/ACOUNTANT [2013]	
15(a) to 15(c)	[provisions relating to annual audit of accounts of PLOA]	15(d)
[new text inserted]	“(d)  Where an external independent auditor is required to audit the accounts of the Association, only the Executive Committee shall formally write to the Secretary of the Association requesting the Secretary to conduct a Special Meeting for that purpose and only by formal Meeting Resolution for an independent audit shall be done by an external auditor.”	
ELECTION OF OFFICERS AND COMMITTEES	
19(a) 	“All executive officers and others who hold a corresponding office in the Porgera Landowners Association shall be appointed by the Chairman, except the 8 elected Executive Committee.” 	19(a) 
[additional text added at end of sub-clause is underlined and n bold]	“(a) All executive officers and others who hold a corresponding office in the Porgera Landowners Association shall be appointed by the Chairman, except the 8 elected Executive Committee which shall be appointed by the 24 financial Members.”	
19(a) to 19(f)	[provisions relating to the election of the members of the Executive Committee (and Executive Officers?) by the 24 financial members of the Association]	19(g) to 19(l)
[new text inserted]	“(g)   Election or removal of the Executive Officers or Executive Committee Members through a vote of no confidence given in accordance with the immediately succeeding clause (g) herein below shall NOT be conducted without the presence of the Chairman of the Association chairing that Meeting, unless prior express written approval is granted by the Chairman to do so in his absence.

(h)   A vote of no confidence for the removal of the Chairman of the Association shall not be allowed and deliberated by the Chairman of the Association unless the following pre-conditions are satisfied by a financial member of the Association who intends to move a vote of no confidence against the Chairman.

(i)A motion for a Vote of No Confidence against the Chairman must set out the following grounds:
   i.  There is strong evidence of misappropriation of the Association funds by the Chairman for his personal benefit; and
   ii. There is strong evidence of misuse of the Associations properties and assets by the Chairman for his personal benefit; and
   iii.   There is strong evidence that the Chairman had continuously acted in breach of the resolutions of the Association and exposed the Association to substantial financial loss and liabilities.

(j)   The Motion for a Vote of No Confidence must be endorsed and signed by more than half of the financial members of the Association.

(k)   The motion for [a] Vote of No Confidence must be given two months advance notice to the Secretary of the Association who shall then immediately inform the Chairman of the Association of such notice.

(l)   Any Motion for a Vote of No Confidence against the Chairman that does not comply with the procedure set out in the immediate preceding paragraph (h) herein above is to the extent of non-compliance, invalid and of no legal effect and must be rejected forthwith.

ACQUIESCENCE IN RULES AND BY LAWS IMPLIED	
24(a)	[Members of PLOA to by bound by Constitution and any by-laws made thereunder]	24(b)
[New text inserted]	“(b)   All association matters including grievances shall be dealt with through a formal meeting called in accordance with the provisions of this Constitution.  Any by-passing of formalities including signing of  unofficial documents shall result in the imposition of the penalty as per clause 12.1 subclause(j) of the Constitution.”	
DISSOLUTION	
28	“The Association may be dissolved or wound up and its surplus assets disposed of in accordance with a scheme or distribution to be approved and determined by meeting of the Executive members to offset any creditors, and liabilities of the Association.”	28. 
[New text inserted in Clause 28 is underlined]	“The Association may be dissolved or wound up and its surplus assets disposed of in accordance with a scheme or distribution to be approved and determined by meeting of the Executive members to offset any creditors, and liabilities of the Association.  The Dissolution of the Association shall only take effect through an Executive Committee Meeting Resolution.  However, where the circumstance allow[s] (for instance  in a situation where the committee members are disunited) the Association Chairman shall have the ultimate power to decide the issue of dissolution or not in close consultation with the Advisory Committee whose decision must be for the best interest of the Association’s membership.”	

55.	Despite what is alleged by Mr Ekepa in his affidavit material, comparison of the 2009 Constitution and the 2013 Constitution of the PLOA shows that there are very significant differences between these two documents which go far beyond identification of those designated members of the PLOA who are financial members and therefore competent to vote and form a quorum at an annual general meeting, an ordinary general meeting or an ordinary special meeting of the PLOA.

56.	The 2013 Constitution introduces 5 new financial members representing their respective sub-clans: Worokos Ondalane replaces Kimaleya Ondalane; Paul Ipai replaces Ipai Lara; Anako Menepa replaces Pawe Menepa; Anton Yanale replaces Yanale Lare; and Erick W. Eno replaces Eno Menepa.  As for the latter, he is said in clause 5(g) of the 2013 Constitution to represent the Nalape/Epeya sub-clan of the Pulumani Clan whereas the 2009 Constitution shows that his predecessor was said to represent just the Nalape Subclan.  Whether there is a difference between branches of the Nalape sub-clan of the Pulumani Clan is not in evidence before this Court in this proceeding. However, that is of no consequence to the more pressing issue, which is whether the changes made to the 2013 Constitution of the PLOA when compared to the 2009 Constitution were restricted to changes in the identity of five of the PLOAs financial members. 

57.	The comparison table set out above shows that Mr Ekepa’s allegation in paragraph 26 of his second affidavit, with reference to the two Constitutions of the PLOA, that “all Clauses are the same except Clause 5(g)” is patently untrue.  The purported 2013 Constitution contains very substantial changes.  

58.	Clause 2(b) in the definition section of the 2009 Constitution states to the effect that where used in the Constitution the term “the Association” means the Porgera Landowners Association Inc, abbreviated as “PLOA”.  Clause 2(b) in the 2013 Constitution extends the definition of the PLOA to include “any other association or organisation with the same generic name and description that comprises the landowners from the Special Mining Lease (“SML”) Area to the exclusion of all other persons and entities who may claim or have any interest over the land where the Porgera Gold Mine Project is situated.”

59.	The aims and objectives of the PLOA were expanded by new sub-clause 3(v) in the 2013 Constitution to include the following:

“3(v)	Where necessary, the Association may regroup its Membership by means of Incorporated Land Group (ILG) headed by financial members of the Association to fairly and equitably redistribute the benefits or any business ventures or interests provided that the Association supervises and coordinates such exercise or arrangement.”

It is not clear from this addition to the PLOA’s aims and objectives in the 2013 Constitution if the intention was to allow for the regrouping of its membership through a single ILG or multiple ILGs.  Presumably the intention was to allow for the 24 sub-clans to establish themselves as ILGs and then have the representatives of those 24 ILGs become financial members of the PLOA. 

60.	Clause 4(b) in the 2009 Constitution states that the election of the Chairman, Deputy Chairman, Secretary, Treasurer and the 8 elected members of the Executive of the PLOA must be from the Teini Clan/Tribe.  The corresponding clause 4(b) in the 2013 Constitution redefines where those office bearers must come from. It stipulates that the elected Chairman, Deputy Chairman, Secretary, Treasurer and 8 elected members of the Executive of the PLOA “must be from the Principle [sic] SML clan/tribe in which their land has been covered by the SML boundary of the Porgera Joint Venture”.   It is not without significance that Mr Ekepa as former chairman of the PLOA comes from the sub-clan Kenza of the Mamai Clan, not from any sub-clan of the Teini Clan, which would have meant that Mr Ekepa would not have been eligible to have been elected as chairman of the PLOA if the 2009 Constitution were to prevail over the 2013 Constitution.

61.	The 2013 Constitution inserts a completely new provision not contained in the 2009 Constitution, namely clause 5(j), which regulates the situation where a financial member of the PLOA formally resigns.  Where this occurs, a meeting of the remaining financial members is required to elect a replacement for the resigned financial member from nominees whose names are submitted by the sub-clan to which the resigned financial member belongs. This is in conflict with clause 5(f) in both Constitutions, which provides:

“5(f)	Should there be a vacancy in the representation of a sub-clan in the Association by reasons of the existing LNC Agent or financial member’s resignation or by death or by expulsion, the Chairman and the remaining financial members or LNC Agents of the Association shall decide and approve or reject who should fill the vacancy before any proper election for his replacement is conducted by the members of the concerned sub-clan.”

62.	Clause 11(e) of the 2009 Constitution deals with benefits payable by the PLOA on resignation, termination or unfitness to serve because of unsoundness of mind of any member of the Executive Committee, of any of the 24 financial members or of any employee of the PLOA. The quantum of that benefit is left to the discretion of the Executive Committee, depending on the period of service of the person concerned.  However, clause 11(e) of the 2013 Constitution provides that the benefit payable to persons on resignation or termination, depending on financial constraints and their role within the PLOA and period of service, is to be quantified at a figure between K200,000 and K300,000.

63.	Clause 12A of the 2009 Constitution outlines the powers and duties of the Chairman of the PLOA.  The 2013 Constitution inserts new sub-clauses 12.l(j) and 12.1(k) which considerably expand the powers and duties of the Chairman to include the disciplinary power to “forewarn, terminate or expel any employee or member of the Committee where he sees them as a threat to the attainment of the Association objectives and aims or wilfully breaching the letter and spirit of the Constitution.”  The Chairman is also given “the ultimate power to make a final decision in the case of any motion whether to dissolve or not to dissolve the Association” after consultation with the Executive Committee.  These are extensive powers not available to the Chairman under the 2009 Constitution. 

64.	The position and powers of the Chairman of the PLOA are further entrenched by new sub-clauses 12.2(b) to 12.2(d) of the 2013 Constitution, which declare that at no time shall the Deputy Chairman usurp the powers and functions of the Chairman or remove or replace the substantive or incumbent Chairman during any period of absence by the Chairman and that any actions or decisions of the Deputy Chairman in breach of this requirement “shall be invalid, null and void and of no legal effect”.  Clearly, these new sub-clauses have been inserted in the 2013 Constitution to ward off challenges by a Deputy Chairman to the authority and appointment of the Chairman. 

65.	Clause 19(a) of the 2013 Constitution clarifies its corresponding sub-clause in the 2009 Constitution by providing that the 8 elected members of the Executive Committee are to be appointed by the 24 financial members of the PLOA, whereas all other executive officers and others (presumably support staff) are to be appointed by the Chairman.

66.	Clauses 19(g) to 19(l) of the 2013 Constitution contain a whole new series of restrictive provisions which deal with votes of no confidence seeking the removal of the Chairman, members of the Executive Committee and executive officers of the PLOA, provisions which are absent in the 2009 Constitution. 

67.	Importantly, the 2013 Constitution amends clause 28 of the 2009 Constitution to provide that the dissolution of the PLOA can only take effect through a resolution passed by a meeting of the Executive Committee but that where Committee members are disunited, the Chairman “shall have the ultimate power to decide the issue of dissolution or not in close consultation with the Advisory Committee whose decision must be for the best interest of the Association’s membership.”

68.	Given the extent of the changes and the increase in powers accorded to the Chairman in the 2013 Constitution of the PLOA, I therefore find it disingenuous for Mr Ekepa on behalf of the plaintiffs in this present proceeding to endeavour to persuade the Court that the 2013 Constitution of the PLOA is virtually the same as the 2009 Constitution except for some changes to the list of financial members in clause 5(g) of the 2013 Constitution. That simply is not correct.  There are very substantial changes purportedly effected by the 2013 Constitution and they affect this Court’s consideration as to which of the two Constitutions are operative, or whether both of those Constitutions are equally invalid. 

69.	The statutory procedure for registering changes to an incorporated association’s rules (or constitution) is set out in s.17 of the Associations Incorporation Act Chapter No. 142: 

17.	Alteration of rules, objects etc.

(1)	The rules of an incorporated association may be altered by special resolution.
(2)	The public officer of an incorporated association must, within one month after–
	(a)	any alteration of the rules of the association; or
	(b)	any alteration of the objects or purposes of the association; or
	(c)	any alteration of any trusts relating to the association (including the creation of new trusts),
	lodge with the Registrar –
	(d)	notice of the alteration; and
	(e)	a copy  of any instrument evidencing the alteration; and
	(f)	a statutory declaration made by the public officer declaring –
		(i)	that the copy is a true copy of the instrument of which it purports to be a copy; and
		(ii)	in the case of an alteration of the objects or purposes of the association, that the alteration is authorized, and was made in the manner provided, by the rules of the association.
(3)	Where, under the rules of an incorporated association, the members of the association are liable to contribute towards –
	(a)	the payment of the debts and liabilities of the association; or
	(b)	the costs, charges and expenses of the winding-up of the association,
	and an alteration of the rules of the association affects that liability, the public officer of the association must, within one month after the alteration, give notice of the alteration in a newspaper published in and circulating generally throughout the country not less frequently than once a week.
(4)	An alteration of the rules, objects or purposes of an association, or of any trusts relating to an association (including the creation of new trusts), is of no effect until Subsections (2) and (3) have been complied with in respect of the alteration and the alteration is approved by the Registrar.
(5)	In the case of an alteration of the rules of an association, a notice under Subsection (2) must be accompanied by a copy of the special resolution by which the alteration was authorized.
(6)	A public officer of an incorporated association who fails to comply with the provisions of subsections (2), (3) or (5) is guilty of an offence.
	Penalty:  A fine not exceeding K40.00
	Default penalty:  A fine not exceeding K5.00
	
70.	A close inspection of Mr Nalepe’s affidavit material indicates that the defendants in this proceeding, having challenged the legal validity of the 2013 Constitution of the PLOA then go on to challenge the legal validity of the 2009 Constitution, despite their initial reliance on the 2009 Constitution as purportedly identifying the financial members of the PLOA who were entitled to vote at the AGM conducted at the Crown Plaza Hotel on 17 July 2018. 

71.	Starting with the plaintiffs’ assertions regarding the 2009 Constitution, set out below are paragraphs 9 to 11 of Mr Ekepa’s third affidavit sworn and filed on 22 March 2019:

“9.	Moreover, the Defendants keep say[ing] that I as the Chairman and my team of Executive Office Bearers of PLOAs’ team expired in 2007 and any activities done in the executive capacity after 2007 was illegal and without authority but they conveniently say that [the] 2009 PLOA Constitution is applicable and reliable in this proceeding.

 10.	Now, Clause 7(3) of the PLOA Constitution says that any alteration or amendments to any Clauses of the PLOA Constitution shall be effected by  two-third[s] of the majority votes of financial members present in a duly constituted General Meeting.

 11.	The question is, if the PLOA Inc Executive Office Bearers term expired in 2007 as claimed by the Defendants then who were the Financial Members and Executive Officer Bearers present in the 2009 General Meeting to alter and amend the PLOA Inc Constitution and submit it to the IPA for their records and upkeep?”

72.	This question, posed by Mr Ekepa and which goes to the validity of the 2009 Constitution, was never answered by Mr Ekepa as 1st plaintiff in his affidavit material.  This issue did however prompt a lengthy response by Mr Nalepe, who deposed in his third affidavit sworn on 28 March 2019 as follows:

“3.	In reply to paragraphs 9, 10 and 11 of the First Plaintiff’s affidavit I refer to paragraphs 16 to 17 of my January [2019] affidavit and further say:-
	(a)	A purported general meeting was held on 14th November 2007 at 5:30 pm at Yamanda Lodge (Kumbi Lodge) where amongst other things, at agenda item no. 5, the Porgera Landowners Association Inc (“PLOA”) constitution was agreed to be amended.  I make the following observations:		
		i.	I never attended that meeting and am not aware of that meeting although my name is listed as one of the attendees, and also stated as actively participating in that meeting.
		ii.	I also note that although agenda item 5 talks about amending the constitution in general terms, there is no clear agreement and resolution as to the exact amendment to be made including removal or retirement of original agents.
		iii.	Accordingly, it is my firm believe that the purported meeting minutes is concocted and fabricated lie to justify or legitimise First Plaintiff and his lawyers illegal alteration of the constitution to remove legitimate clan agents and replace with their own cronies to illegally continue to occupy the position of Chairman beyond the expiry of this term as he did.
	Annexed hereto and marked with letter “A” is a copy of the purported meeting minutes of 14th November 2007 lodged with Investment Promotion Authority (IPA) on 11th May 2009 as evident by IPA stamp/common seal affixed to the meeting minutes.
	Annexed hereto and marked with letter “B”is copy of PLOA letter dated 14th November 2017 signed by the First Plaintiff but lodged with IPA two years later on 11th May 2009 after the purported meeting.
	Annexed hereto and marked with letter “C” is a copy of Form 7 of Associations Incorporation Act dated 14th November 2007 signed by the First Plaintiff as the Public Officer but lodged two (2) years later at IPA on 11th May 2009 as indicated by IPA stamp affixed to the Form 7.
		
	(b)	Since the purported Amended Constitution and supporting documents were not lodged with IPA within one (1) month pursuant to Section 17(2) of the Association[s] Incorporation Act, the purported Amendment is invalid and IPA should not have accepted those documents.

4.	The 11th May 2009 Constitution at least contains the names of many of the original SML clan agents although it is not the original constitution as significant alteration had been made illegally to the original Constitution.

5.	The First Plaintiff as the public officer and chairman should be in possession and custody of the original constitution but he has been unable to produce same.  That is why we relied on the 11th May 2009 constitution which is the only earliest document available before the Constitution was illegally altered by the First Plaintiff … as evident in the 2013 Constitution.

6.	With regard to the 2013 Constitution concocted by the First Plaintiff … and lodged with the IPA I maintain what I have stated at paragraph 12 to 15 of [my] January [2019] affidavit.  I note the Plaintiffs have neither refuted what I have stated therein nor denied the same.”

73.	While I disregard most of Mr Nalepe’s contentions in paragraph 3 of his third affidavit as being in the nature of submissions rather than evidence of facts, a flaw which is apparent in the drafting of much of the affidavit material of all parties and their deponents in this case, I observe that Mr Nalepe is correct when he asserts in paragraph 6 of his third affidavit that the plaintiffs have not placed in evidence in this proceeding documentation or testimony that refutes or denies  much of what Mr Nalepe has alleged regarding procedural and documentary defects with purported meetings of the Executive Committee and financial members of the PLOA.   

74.	For instance, the plaintiffs have not produced in evidence in this proceeding a copy of the statutory declaration required to have been made by Mr Ekepa as purported public officer of the PLOA in compliance with s.17(2)(f) of the Associations Incorporation Act declaring that the copy of the 2009 Constitution supposedly approved by a general meeting of members of the PLOA on 14 November 2007 but lodged late with the Registrar of Companies at the IPA on 11 May 2009, was a true copy of that Constitution and that the alteration to the objectives reflected in sub-clause 3(v) of the 2009 Constitution were authorised and made in the manner provided in the prior Constitution of the PLOA.  Section 17(4) of the Act is unambiguous. No alteration to the rules or constitution or objects or purposes of an incorporated association has legal effect unless ss.17(2) and 17(3) have been complied with in respect of the alteration and the alteration has been approved by the Registrar.  No evidence of that compliance is before this Court, either in respect of the 2009 Constitution or the 2013 Constitution.

75.	But that is not the end of the confusion.  The net effect of Mr Nalepe’s third affidavit is that he contends that both the 2009 Constitution and the 2013 Constitution are each invalid but he somehow seeks to rely on the 2009 Constitution because, as he says in paragraph 4 of his third affidavit, the 2009 Constitution “at least contains the names of many of the original SML clan agents although it is not the original constitution as significant alteration had been made illegally to the original Constitution.”

76.	It is not in dispute that the original Constitution of the PLOA which regulated the affairs of the PLOA following its incorporation on 17 November 1992 is not in evidence. It seems that the original Constitution and any subsequent Constitution of the PLOA prior to the 2009 Constitution has been lost or removed from the records of the IPA and of the PLOA.  

77.	This Court has in evidence before it the 2009 Constitution and the 2013 Constitution of the PLOA, neither of which Constitutions can, on the evidence adduced by the parties in this proceeding, be proved to the satisfaction of the Court to be the effective Constitution which regulated the affairs of the PLOA when Justice David delivered his decision in OS No. 907 of 2014 on 9 June 2018 dismissing JFFPL’s claims.  It will be recalled that the JFFPL was seeking in that proceeding orders, among others, to invalidate Mr Ekepa’s chairmanship of the PLOA as from 1998 and to order that an urgent AGM be conducted to elect new office bearers for the PLOA. 

78.	I have already found that when Justice David dismissed JFFPL’s case, his Honour’s decision was predicated on the assumption that the 2009 Constitution was valid and in force because that was the Constitution relied on by Mr Ekepa and his supporters in their defence of JFFPL’s claims. 

79.	A very different scenario has now been postulated in the present case. The plaintiffs here seek to rely on the 2013 Constitution of the PLOA.  In stark contrast, the defendants deny the validity of both the 2009 Constitution and the 2013 Constitution yet ask the Court to rely on the 2009 Constitution as being the best evidence available of the Constitution or Constitutions which preceded the 2009 Constitution.

80.	When Justice David made the obiter observation at the conclusion of his Honour’s judgment in OS No. 907 of 2014 to the effect that an annual general meeting or special general meeting of the PLOA should be convened as soon as possible to elect new executive office bearers pursuant to clause 18 (annual general meetings) or clause 20 (general meetings) of the PLOA Constitution, he did so by implied reference to the 2009 Constitution.  His Honour’s observation in this regard was not framed as an order. It was a recommendation that the parties should pursue the holding of an AGM as a means of resolving the dispute regarding the chairmanship and affairs of the PLOA. But his Honour, when dismissing the JFFPL’s proceeding in OS No. 907 of 2014, gave no indication as to the mechanics and legal procedure by which that AGM could be convened and held.

81.	I agree with Mr Ekepa when he stated at paragraph 54 of his third affidavit sworn on 22 March 2019 that Justice David did not determine in his final decision in OS No. 907 of 2014 who should call the AGM for the PLOA and who should attend that AGM to elect PLOA executives.

82.	Taking all of these matters into consideration, it is my finding in this proceeding that neither the 2009 Constitution nor the 2013 Constitution of the PLOA have been established on the civil standard of proof, that is to say on the balance of probabilities, to be the valid Constitution which regulates the affairs of the PLOA.  Indeed, the evidence has shown that the PLOA is completely dysfunctional and has been operating without any legal basis for many years due to the absence of proof, at least in this case, of the last date or dates on which Mr Ekepa and other former executives of the PLOA were validly elected to office pursuant to a valid Constitution.  It follows therefore that in the absence of proof of a valid Constitution, this Court is also unable to rule on the validity or otherwise of the purported AGM which was conducted by Mr Nalepe’s faction of the PLOA at the Crown Plaza Hotel on 17 May 2018. 

83.	Having found that this Court is unable to determine on the evidence presented which Constitution of the PLOA is operative, the issue which is now squarely before the Court is whether this proceeding should be summarily dismissed under the general powers of the Court under NCR Order 12 Rule 1 and/or on any one or more of the three grounds for summary dismissal set out in NCR Order 12 Rule 40(1)because the defendants contend that the proceedings: 

(a)	disclose no reasonable cause of action; and or
(b)	are frivolous and vexatious; and or
(c)	are an abuse of process of the Court.
.
84.	NCR Order 12 Rule 1 provides:

“1.	General relief

	The Court may, at any stage of any proceedings, on the application of a party, direct the entry of such judgment or made such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process.”

85.	In the present case, the plaintiffs seek only declaratory relief in their originating summons.  I observe that no substantive orders at all have been sought by the plaintiffs in their originating summons filed on 10 August 2018. Having sought certain judicial declarations in their originating process, this paved the way for the plaintiffs to pursue the secondary but more urgent relief they were seeking, that is to say their ex parte motion which accompanied the filing of their originating summons.  This was the plaintiffs’ application for an urgent interim injunction to restrain the defendants from holding themselves out as newly appointed or elected executives of the PLOA as a result of the AGM held on 17 July 2018 and to restrain the defendants from changing signatories on PLOA’s bank accounts pending the hearing of the plaintiffs’ substantive claim for declarations. This the plaintiffs were entitled at that stage to do.  

86.	It is well established procedural law that primary relief must first be pleaded in an originating summons before any consequential or secondary injunctive relief can be granted.  Injunctive relief is consequential and cannot stand on its own: Bros Rugby Football Club Inc v Port Moresby Rugby Football Union Inc (2004) N2537 (Injia DCJ, as he then was).

87.	When commencing this suit in the National Court, the plaintiffs elected to proceed by originating summons, not by writ of summons.  The substantive relief claimed by the plaintiffs is a series of three judicial declarations that the AGM for the PLOA held on 17 July 2018 is void, that the proper 24 landowner agents and financial members of the PLOA are those persons who are named in the list contained in clause 5(a) of the Constitution of the PLOA and that those executives of the PLOA whose term has expired shall call for the next AGM of the PLOA.  I observe that no specific substantive final orders have been sought by the plaintiffs in their originating summons.  The plaintiffs by their original summons seek the costs of the proceeding, abridgement of time for entry of any order which may be made by the Court and the usual catch-all claim for “such further orders” as the Court may deem just, but these are in the nature of consequential orders, not orders which determine core issues raised in the proceeding.

88.	NCR Order 4 Rule 1 governs the mode of commencement of civil proceedings in the National Court. It provides:

“Division 1 – Mode of Beginning Civil Proceedings
1.	Subject to the provisions of any Act, regulations or rules but without prejudice to Order 8 Rule 38, proceedings in the Court under this Part shall be commenced by writ of summons or by originating summons.”

89.	NCR Order 4 Rule 3 provides qualified guidance as to which of the two basic modes of instituting civil actions a plaintiff can elect to use: 

“3.	Where plaintiff may choose:
	(1)	Except in the case of proceedings which by these Rules or by or under any Act are required to be commenced by writ of summons, proceedings may be commenced either by writ of summons or by originating summons as the plaintiff considers appropriate.
	(2)	Proceedings – 
		(a)	in which the sole or principal question at issue is, or is likely to be, one of the construction of an Act or of any instrument made under an Act, or any deed, will, contract or other document, or some other question of law; or
		(b)	in which there is unlikely to be a substantial dispute of fact; or
		(c)	in which a person is authorized by an Act, regulation or by these Rules to make an application to the Court or a Judge with respect to a matter that is not already the subject matter of a pending cause or matter, and no othermode of making the application is prescribed by that Act, or regulation or bythese Rules,
		are amongst those which are appropriate to be commenced by originating summons unless the plaintiff considers the proceedings more appropriate to be commenced by writ of summons.”		[emphasis added]
	
90.	Further guidance as to the circumstances when it is more appropriate for a plaintiff to commence an action in the National Court by writ of summons rather than originating summons can be found in numerous authoritative cases.

91.	An early case in point is Masive v Kenderop [1985] PNGLR 105 where Pratt J held that an application to the National Court by way of originating summons under NCR Order 4 should only be used where the facts are not in dispute.  His Honour stated at p.106: 

“I believe it is essential for the court to insist that originating summons be restricted basically to matters where the facts are not in dispute (leaving aside custody cases which are under a separate category).  From what I have been told disputation of facts will figure quite prominently in the present matter.  I can believe that would be so.  To this end I emphasise that under the National Court Rules, O.4 r.2(b), a most important factor in deciding on the appropriateness or otherwise of proceedings by way of originating summons is “there is unlikely to be a substantial dispute of fact”. ” 

92.	Here almost every fact alleged by one side is vehemently denied by the other side. The affidavit material of the parties abounds with unproven allegations, counter-allegations and denials.  Allegations of fabricated minutes of meetings, manufactured documentation and false signatures permeate the prolix affidavit evidence of both the plaintiffs and the defendants.  A classic instance of disputed facts in this proceeding, just one example in a morass of denials, is provided by two deponents of the same name each claiming to be Jolson Kutato of the Angalain Piko sub-clan.  The defendants rely on the affidavit sworn on 22 October 2018 of a deponent who says he is Jolson Kutato and who denies that he was ever been replaced as the LNC agent for his sub-clan by his cousin Ken Pos.  In opposition, the plaintiffs rely on the affidavit sworn on 26 October 2018 of a different deponent, also named Jolson Kutato, who asserts that although he was the former LNC agent for his sub-clan, he has been replaced by Ken Pos and that the signature on the affidavit sworn by the other Jolson Kutato is not his signature.  In other words, the second Jolson Kutato alleges that the deponent of the earlier affidavit is an imposter.  Neither of those two Jolson Kutatos were cross-examined on their conflicting evidence. Nor should they have been in this originating summons proceeding where it is inappropriate for this Court to have to contend with substantial disputes of fact. 

93.	I now consider a further significant aspect of the present case. I have already observed that the only primary relief claimed by the plaintiffs in this proceeding is declaratory relief. 

94.	A judicial declaration is a formal statement by the court pronouncing upon the existence or non-existence of a legal state of affairs.  It is a definitive statement by the court declaring the parties’ rights in a particular matter, whether subsisting or in the future.

95.	The court’s jurisdiction to grant declaratory relief is not limited to a declaration of existing rights but extends to the court’s declaration as to what the rights of parties will be on the occurrence of some future event.  The court’s jurisdiction with regard to declaratory relief was explained by Lord Diplock in Gouriet v Union of Post Office Workers [1977] 3 All ER 70 at p.100 in these terms:
“Relief in the form of a declaration of right is generally superfluous for a plaintiff who has a subsisting cause of action.  It is when an infringement of the plaintiff’s rights in the future is threatened or when, unaccompanied by threats, there is a dispute between parties as to what their respective rights will be if something happens in the future that the jurisdiction to make declarations of right can be most usefully invoked.  But the jurisdiction of the court is not to declare the law generally or to give advisory opinions: it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not those of anyone else.”

96.	However declaratory relief is non-coercive, that is to say it is not capable of being enforced as an order of the Court.  Similarly, contempt proceedings do not normally apply should a party choose to disregard the court’s declaration on a point of law or legal state of affairs.

97.	The learned authors of de Smiths Judicial Review of Administrative Action(2013) 7th Ed. Sweet & Maxwell explain the non-coercive nature of declaratory relief at para. 18-0237 at p.975 in these terms:

“A declaration is to be contrasted with an executory, in other words, coercive judgment which can be enforced by the courts.  In the case of an executory judgment, the courts determine the respective rights of the parties and then order the defendant to a act in a certain way, for example, to pay damages or to refrain from interfering with the claimant’s rights.  If the order is disregarded, it can be enforced by official action, usually by levying execution against the defendant’s property or by imprisoning him for contempt of court.  A declaration, on the other hand, pronounces upon the existence of a legal relationship but does not contain any order which can be enforced against the defendant.”

98.	The remedy is discretionary.

99.	The Courts will decline to make a declaration that would be of no practical use in resolving the real dispute between the parties.  

100.	In Rivers v Bondi Junction-Waverly RSL Sub-branch Ltd (1986) 5 NSWLR 362 the plaintiff sought a declaration that office bearers of the respondent club had not been validly elected.  The NSW Court of Appeal found that as the vote was not close and no candidate had suggested that the result had been adversely affected by procedural breaches the subject of the complaint, there had been no “bad faith” in the conduct of the election.  The declarations sought by the plaintiff were refused because it was held that the relief, even if granted, would serve no practical purpose other than vindicate a point of principle.

101.	In Waghi Mek Plantations Ltd v Mundiye (2011) N4383 the plaintiff commenced proceedings by originating summons seeking a declaration confirming its right to exclusive access and use of 14 coffee plantations, a declaration that the defendants’ logging activities on the plantations were illegal and a permanent injunction to restrain the defendants from conducting further logging operations on the plantations. Pending the determination of the substantive claims for relief, the plaintiff obtained an ex parte interim injunction restraining the defendants from conducting further logging activities, eviction of the defendants and confiscation of plant and equipment used by the defendants in their logging operations.  The defendants countered with several applications, one of which was that the proceeding be dismissed for failing to disclose a reasonable cause of action, that it was frivolous and vexatious and an abuse of process within the meaning of NCR Order 12 Rules 40(1)(a), (b) and (c).  Justice Makail held that because there was no real dispute as to the plaintiff’s ownership of the plantations and that the defendants’ logging operations were illegal, there was no controversy between the parties as to the occupation and use of the plantations  His Honour found that the plaintiff’s appropriate cause of action was an action in trespass where damages would be an appropriate and adequate remedy.  His Honour accordingly found that where wrongful acts have been committed and it is necessary for coercive relief to be obtained, declaratory relief is not an appropriate primary remedy to seek by originating summons.  His Honour said at para. 19 on p. 14 of his decision:

“19.	In my view, a cause of action based on trespass should appropriately be commenced by writ of summons with a statement of claim which would set out the material facts, allegations of breaches and relief sought.  Where an action for trespass is commenced by writ of summons with a statement of claim, it gives the opposing party (defendant) an opportunity to respond to the allegations by way of a defence. The statement of claim would identify the issues between the parties and the kind of evidence that may be led at trial:  See Order 4 rule 2, Order 8 rules 3 and 4 of the National Court Rules.”

His Honour dismissed the plaintiff’s proceeding under NCR Order 12 Rule 40(1)(a) for failing to disclose a reasonable cause of action and under Order 12 Rule 40(1)(c) for being an abuse of process.

102.	In NCDIC v Bogibada Holdings Pty Ltd [1987] PNGLR 135 it was held by Kapi DCJ (as he then was) that declaratory relief should be refused if the granting of the declarations sought would not settle the dispute between the parties. His Honour said in response to the declaratory orders which were being sought:
“Any declaration is not able to settle the dispute. The plaintiff intends to make a claim for damages. The plaintiff may take action against Mr Griffin for breach of trust. The issues sought in the declaration could be raised in these actions. If I were to grant the declaration sought, I would be deciding the whole dispute between the parties in a piecemeal manner. That is to say, the parties would now get certain questions of fact and law decided. That would hardly resolve the dispute between the plaintiff and the first defendant. If the declarations were granted in its favour, the plaintiff would continue with a claim of damages or account of profits in a separate action. This would not only escalate costs to parties but also encourage multiplicity of proceedings before the court. In my view, this should be discouraged in this jurisdiction. Litigants should be encouraged to bring all matters in a dispute in the one action to avoid a multiplicity of proceedings. An appropriate method of resolving all the issues would be by way of a writ. This would allow for proper pleading of all facts and issues of law for determination by the court.”

103.	This reasoning has been followed in the Supreme Court decision of TS Tan v Elcom (2002) SC683, Ok Tedi Mining Ltd v Niugini Insurance Corporation (No. 2) [1988-89] PNGLR 45, Telikom PNG Ltd v ICCC (2007) N3144, Lamana Development Ltd v Kavana (2007) N3180, Ipara v Yuma (2010) N427, Fangau v Bank of South Pacific Ltd (2012) N4847, Pundia v ANZ Banking Group (PNG) Ltd (2015) N6140; Rageau v Kina Finance Ltd (2015) N6175, Shengtai Investments Ltd v Chen Jing (2017) N6753, and Waigani Heights Development Ltd v Mul (2018) 7162.  

104.	It is apparent from the abundance of evidence which has been presented before me that the plaintiffs intend, if granted their motion now before the Court, to take control of the PLOA and its bank accounts.  No resolution of the core issue as to who are the LNC agents currently entitled to be financial members and to vote at meetings of the PLOA has previously been able to be reached by the plaintiffs with the defendants, mediation of that issue having failed because members of the JFFPL withdrew from participation in the mediation process.  The plaintiffs and the defendants in this current proceeding remain at a total impasse on this central issue.  This proceeding cannot resolve that impasse because the Court is unable to determine on the evidence which Constitution of the PLOA lawfully prevails, if indeed any Constitution prevails. No judicial declaration made by this Court in the terms sought by the plaintiffs in their originating summons in OS No. 548 of 2018 will settle that dispute because the underlying core issue will still remain.

105.	Moreover, there is the further issue, not addressed by the plaintiffs in their submissions, as to whether the PLOA in its present dysfunctional state is even capable of being restored to that of a legally compliant corporate entity under the Associations Incorporation Act so as to be able to perform the objectives for which it was established. I accept the defendants’ submission in this regard that this Court cannot sit comfortably with the prospect that if the declarations sought by the plaintiffs were to be granted, that the PLOA would be allowed to wrongfully function in breach of its statutory obligations under the Associations Incorporation Act and in breach of its own Constitution, assuming that the 2009 Constitution or the 2013 Constitution or some earlier Constitution of the PLOA is actually still in force.

106.	Irrespective of whether or not the declarations sought by the plaintiffs in their originating summons in this proceeding were to be granted, given the convoluted history of the litigation which has already preceded this case, I consider it inevitable that the defendants here (or certain of them) would commence further proceedings, whether by appeal or fresh actions, challenging the legal status of the PLOA by reference to the two markedly different versions of the Constitution of the PLOA which have been adduced in evidence before me. If they have not already done so, the1st and 2nd defendants would no doubt also institute writ of summons proceedings claiming, among others, relief based on breach of fiduciary duties by the PLOA and its former office bearers by pleading any or all of those causes of action in equity known as actions for account, restitution and or monies had and received. There is ample evidence before this Court that the defendants in this proceeding require the PLOA and Mr Ekepa as its former chairman to account to past financial members of the PLOA and the 24 sub-clans they represent for the many millions of kina in royalties received by the PLOA intended for distribution to the 24 sub-clans via their LNC agents after payment of PLOA’s administration expenses right back to the time when the PLOA was incorporated on 17 November 1992.

107.	The primary issue between the two factions of the PLOA is identification of the proper LNC agents and representatives of the 24 sub-clans at Porgera who were, as at the time of the holding of the purported AGM of the PLOA on 27 July 2018 and down to the present time, entitled to be “financial members” of the PLOA and who are therefore entitled to vote at AGMs, ordinary general meetings and special general meetings of the PLOA.  There is also the equally pressing issue, yet to be judicially determined by this Court in competent proceedings, as to which version of the Constitution of the PLOA is the operative Constitution, if indeed any version is lawfully operative, given the finding by Justice David in OS No. 907 of 2014 that the terms of office for the executive office bearers of the PLOA have long since expired. 

108.	Unless and until concurrence can be given by the LNC agents for each of the 24 sub-clans, whether by direct negotiation, further mediation or some other mode of alternative dispute resolution, resolving all of the serious differences which exist between the different factions within the PLOA, the PLOA will continue to remain dysfunctional. In the absence of such concurrence by the LNC agents for all 24 sub-clans, a highly optimistic option, then in my considered opinion the only remaining means to restore functionality to the PLOA would be for this Court or some other court of competent jurisdiction to determine a properly pleaded statement of claim in writ of summons proceedings, validating one particular version of the Constitution over the other, alternatively making a ruling and giving directions which would enable the PLOA to be re-established according to law.  The preponderance of facts and issues which are in dispute in this present proceeding is overwhelming and it is not appropriate for this Court to allow this proceeding to continue further using the originating summons process.

109.	For these reasons it follows that this proceeding is an abuse of process within the meaning of NCR Order 12 Rule 40(1)(c) because the declaratory and other relief sought by the plaintiffs will not determine the underlying core issues which continue to prevail between the disputing parties. It is in my view not necessary to invoke NCR Order 12 Rule 1 in support of the dismissal.  

110.	The PLOA is presently dysfunctional and will remain so until all 24 sub-clans can mutually resolve their differences regarding the PLOA or until this Court, upon determination of a properly pleaded statement of claim in a writ of summons proceeding, can resolve those differences and makes directions resulting in the re-establishment of the PLOA according to law.

111.	This proceeding in OS No. 548 of 2018will accordingly be dismissed as an abuse of process, as sought in term 2 of the motion filed by the 1st and 2nd defendants on 22 January 2019.  This means that the plaintiffs’ motion filed on 9 January 2019 seeking various interlocutory orders is refused as it will be subsumed in the dismissal.

112.	However, the dismissal of this proceeding raises the issue as what is to be the future of the interim injunction granted by Justice Kariko on 18 August 2018 as extended by Justice Kassman on 20 September 2018.  That injunction restrained the defendants from holding themselves out as the newly appointed or elected executives of the PLOA.  It restrained both the plaintiffs and the defendants from “inciting and organizing any meeting or gathering intended to cause disharmony, fragmentation or division to the smooth operation of the PLOA until further order of the Court”. The injunction also restrained any persons, including all plaintiffs and defendants in this proceeding, from transacting or withdrawing funds from the two identified bank accounts of the PLOA until further order of the court.  

113.	I observe that the position taken by the defendants, as emphasised by their counsel Mr Kostopoulos in his submissions at the hearing of the subject two motions, is that Mr Ekepa as the former chairman of the PLOA and his board have failed to account for PLOA’s receipt and expenditure of royalties and other benefits in excess of K50million, said to have accrued to the 24 sub-clans entitled to membership in the PLOA for the last 25 years back to 1994.  Allegations by the defendants of mismanagement and failure by Mr Ekepa and his executive committee to provide proper financial reports and to comply with PLOA’s statutory reporting requirements under the Associations Incorporation Act are rife but unproven in this proceeding. For the reasons already given, this Court is not in a position in this proceeding to test the evidence and determine the veracity or otherwise of those allegations.  

114.	However, it is obvious that the plaintiffs would access all of PLOA’s funds presently held in the injuncted Bank of South Pacific Ltd bank accounts if the interim injunction were to be dissolved.  This would in my considered opinion inevitably result in allegations by various of the sub-clans that their guaranteed right under Division 3 s.53 of the National Constitution to protection from unjust deprivation of property had been infringed.  In recognition of that right and of the need for all monies presently held in the injuncted bank accounts to remain protected until further order of this Court or a court of competent jurisdiction, I will make an order to that effect pursuant to s.155(4) of the National Constitution. 

115.	Section 155(4) of the National Constitution confers an inherent jurisdiction on both the National Court and the Supreme Court to make such orders as are necessary to do justice in the circumstances of a particular case.

116.	It was held in Application by John Mua Nilkare, Review Pursuant to S.155(4) of the Constitution [1998] PNGLR 472 per Amet CJ and Los J that the wording “to do justice in the circumstances of a particular case” means that the National Court and the Supreme Court are invested with an unfettered discretion to fashion orders that will “do justice” which is just and fair.  I consider it just and fair to all parties to this present originating summons proceeding that all monies presently injuncted in the PLOAs bank accounts with the Bank of South Pacific remain protected until further order of this Court or a court of competent jurisdiction in properly pleaded writ of summons proceedings.

117.	The order that I propose to make injuncting the PLOA’s bank accounts until further order will be in the nature of a permanent injunction but nevertheless conditional on further order in separate proceedings.  It will not be the continuation of the existing interim injunction:  see Boochani v Independent State of Papua New Guinea (2017) SC1566 (Injia CJ, Salika DCJ, Hartshorn J).

118.	As to costs, I exercise the Court’s discretion to direct that each party is to bear its own costs of this proceeding.  The reason for this is because the core issue of the ongoing dispute between the parties has been unable to be resolved in this proceeding.  Both sides have thus far failed to avail themselves of the proper procedure to have the Court determine which, if any of the Constitutions of the PLOA is operative and to seek orders of the Court which would enable the dysfunctional PLOA to either become operative again or to be wound up, with orders for the PLOA and its past executives to account to the 24 sub-clans of the SML area of the Porgera Gold Mine for monies had and received for the duration that the PLOA was receiving those monies.  The parties’ dispute in its myriad forms has already had a long and arduous history of litigation. It seems inevitable that more litigation is likely to come. 

	ORDER

119.	The formal orders of the Court are:

1.	The motion filed by the Plaintiffs on 9 January 2018 is refused.

2.	This proceeding is dismissed as an abuse of process.

3.	It is a term of this dismissal that pursuant to s.155(4) of the Constitution, no person or persons, including the Plaintiffs and the Defendants, shall withdraw funds from or make any transactions affecting bank accounts nos. 10087415 and 10008753314 operated or formerly operated by the Porgera Landowners Association Inc. with the Bank of South Pacific Limited until such time as this Court or a court of competent jurisdiction in separate proceedings shall for proper cause order otherwise. 

4.	Each party shall pay their own costs of and incidental to this proceeding.

Ordered accordingly
________________________________________________________________
Paul Mawa Lawyers: Lawyers for First, Second, Third, Fourth & Fifth Plaintiffs  
Nandape & Associates: Lawyers for Sixth Plaintiff
Haiara’s Legal Practice:  Lawyers for First & Second Defendants	
Harry Lawyers:  Lawyers for Eight, Ninth, Tenth & Eleventh Defendants