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Ngusu Glan Ltd v VJ Holdings Ltd [2022] PGNC 421; N9802 (6 June 2022)

N9802

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS NO. 204 OF 2021


BETWEEN:
NGUSU GLAN LIMITED
Plaintiff


AND:
VJ HOLDINGS LIMITED
First Defendant


AND:
STEVEN WAWAO and HIS AGENTS AND ASSOCIATES
Second Defendant


Kokopo: Kassman J
2022: 8th March & 6th June


PRACTICE AND PROCEDURE – originating summons filed by plaintiffs converted to pleadings – plaintiff and defendant had executed an MOU to secure the required timber permit and prepare a Logging and Marketing Agreement (LMA) - Plaintiff claims first defendant breached provisions of the LMA including the failure of VJ to lodge a performance bond with PNGFA within the time required under the FCA - plaintiff claims it had terminated the LMA - Plaintiff claims that after it terminated the MOU and LMA on the defendants continue to trespass onto their land - Plantiff claims damages for trespass and environmental damages - Plaintiff also seeks a declaration that it is at liberty to enter into a contract with another developer in place of VJ –


BREACH OF CONTRACT - whether plaintiff had rightly terminated the MOU Second defendant’s entry to Plaintiff’s land after 7 May 2021 was unlawful - The actions of second defendant and their agents and contractors in clearing the land after 7 May 2021 was unlawful – plaintiff is at liberty to exercise its rights under the FCA issued by PNG Forest Authority on 7 October 2021 – costs in favour of the plaintiffs


Counsel:


E. Isaac, for the Plaintiff
R. Rakatani, for the First and Second Defendants


DECISION


6th June, 2022


  1. KASSMAN J: The plaintiff Ngusu Glan Limited (“Ngusu”) commenced this proceeding on 22 June 2021 against the First Defendant VJ Holdings Limited (“VJ”) and the Second Defendant Steven Waowao (“Wawao”) by the filing of an Originating Summons. On 10 August 2021, this court refused an application by VJ to dismiss the proceedings and ordered the proceedings continue by the filing of pleadings. Being aggrieved, VJ and Waowao filed on 18 August 2021 an application for leave to appeal the decision refusing dismissal, but that application was dismissed by the Supreme Court on 12 January 2022. This matter went to trial on 8 March 2022, and I heard submissions on 18 March 2022. I reserved and delivered my decision orally on 14 June 2022. As promised, I now issue my written decision.

Background


  1. Ngusu is a company duly incorporated and its shareholders represent three clans namely Avasaria Clan, Mavang Clan and Allanas Clan. These clans are the landowners of the Simbali Tree Plantation Project Area covered under Timber permit number FCA 15-19 which is located in the Rural Sinivit LLG in the Pomio District, East New Britain Province (“the land”). By the IPA company extract as at 16 July 2020 for Ngusu, there were 100 shares issued which were held by two shareholders holding 50 shares each by Charles Lesley and Nason Yao, both of Mavang Clan. There were nine directors all of Mavang Clan namely Hendrick Awarin, Jeffrey Dominicus, Christop Dominicus, Nason Kanurai, Dominicus Karigam, Kevin Kovo, Rupen Mamong, Lison Namas and Nason Yao. There were two company secretaries Jackson Allan and Otte Kewafa both of Mavang Clan.
  2. VJ is also a company duly incorporated. By the IPA company extract as at 4 August 2021, there were twenty thousand issued shares held by shareholders, all of Malaysia. 7792 shares were held by Ngie Yung Lau, 1966 shares by Tung Mei Sii, 1968 shares by Toh Heng Lu, 950 shares by Wand Ping Ko, 950 shares by Huat Ping Ting and 532 shares by Ken Ping Law, 466 shares by Pand Heng Chew, 1584 shares by Ngik Chiew Lau and 792 shares by Ding Kuong Tiong. There were four directors namely Pang Heng Chew, Wang Ping Ko, Ngie Yung Lau and Toh Heng Lu and the secretary was Ta Hung Hii.
  3. Waowao is a member of the Allanas Clan but is not a shareholder representative of Ngusu and is not a director on the board of Ngusu and neither does he hold any other office within Ngusu.
  4. On 15 August 2019, Ngusu and VJ executed a Memorandum of Understanding (“MOU”) by which it was noted Ngusu is the landowner company and agreed to engage VJ to be the sole contractor on certain terms including to develop the Simbali project, secure the required timber permit and prepare a Logging and Marketing Agreement. The MOU was executed under common seal by Ngusu by Jeffrey Dominicus, Managing Director and Lesley Charles, Chairman and witnessed by Nasson Yao, Deputy Chairman. VJ’s common seal was also affixed with the signatures of Chew Pang Heng, Managing Director and Eric Chan Mung, General Manager. The name of the witness to execution under common seal was not stated.
  5. On 3 March 2020, Ngusu and VJ executed a Logging & Marketing Agreement (“LMA”) by which it was agreed VJ would enter the land and harvest and extract standing timber and market such resources in accordance with the terms and conditions provided. The LMA was to be effective for the term of the Forest Clearance Authority to be issued by the PNG Forest Authority (“PNGFA”) and VJ agreed to pay the performance bond. The LMA was executed under common seal by Ngusu by Lesley Charles, Chairman and Mavang Clan Leader and Albert Sin, Vice Chairman and Awasaria Clan Leader and witnessed by Steven Waowao as Alanas Clan Leader. VJ’s common seal was also affixed with the signatures of Chew Pang Heng, Managing Director and Eric Chan, General Manager and witnessed by Mathew Gawing.
  6. On 7 October 2020, PNGFA issued to Ngusu a Forest Clearance Authority (“FCA”) which, as the title states, was the statutory approval or authority provided by PNGFA to Ngusu to carry out a large scale conversion of forest to agriculture or other land use development within the 15,400 hectares of land area described for a certain period of time. The FCA also stated Ngusu was required to lodge the performance bond within 21 days in the amount of K595,000, failing which the FCA would be deemed void and cancelled.
  7. On 9 June 2021, a Performance Bond was issued by First Investment Finance Limited in the sum of K595,000 for the benefit of PNGFA on behalf of their customer VJ.

Pleadings


  1. Ngusu filed a statement of claim on 13 August 2021, VJ and Waowao filed their defence on 24 August 2021 and Ngusu filed a rely on 25 August 2021.
  2. Ngusu’s statement of claim was lengthy and contained evidence and legal submissions but that was not raised as an issue by VJ and Waowao. Ngusu claims VJ breached provisions of the LMA including the failure of VJ to lodge a performance bond with PNGFA within the time required under the FCA. Ngusu also says the MOU and LMA were executed many months before issue of the FCA by PNGFA and that is unusual. Ngusu also says the FCA was valid for eight years and at the time of its termination of the MOU and LMA and commencement of these proceedings, over one year had elapsed with no progress with the project by VJ on its critical obligations under the LMA and FCA. Ngusu claims it duly terminated the MOU and LMA on or about 20 April 2021 when Ngusu delivered a letter of termination to VJ’s representative Chew Peng Heng.
  3. Ngusu claims that after it terminated the MOU and LMA on 20 April 2021, VJ entered the land on or about 23 July 2021 and cut trees and destroyed other resources on the land without lawful authority and continued to remain on the land without lawful authority up until it was ordered to stop its unlawful actions by interim order of the court on 2 August 2021. That interim ex parte order was subsequently confirmed by the court and remains in force pending determination of this proceeding. Ngusu claims damages for trespass and environmental damages. Ngusu also seeks a declaration that it is at liberty to enter into a contract with another developer in place of VJ.
  4. In their defence, VJ and Waowao say VJ is not in breach of the MOU and LMA but has duly complied with its obligations in the LMA by lawfully entering the land and has lawfully commenced operations as provided for in the MOU and LMA. VJ and Waowao say the purported termination of the LMA as asserted by Ngusu is itself unlawful and contrary to provisions of the LMA. VJ and Waowao say clause 12 of the LMA provides for arbitration and termination and those avenues or processes have not been exhausted and for that reason the commencement of these proceedings is premature and contrary to the contractual obligations of Ngusu and VJ under the MOU and LMA.
  5. VJ and Waowao also claim the meetings of Ngusu by which the members and board of Ngusu purported to resolve to terminate the MOU and LMA with VJ were not duly called and constituted. They also claim the engagement of lawyers for Ngusu and commencement of these court proceedings were not authorised by the directors and shareholders of Ngusu.
  6. The court notes a Performance Guarantee in respect of the FCA in the sum of K595,000 dated 9 June 2021 was issued by First Investment Finance Limited (“FIFL”) to PNGFA. That was not refuted by Ngusu however Ngusu says FIFL issued the Performance Guarantee after Ngusu had lawfully terminated the MOU and LMA on 20 April 2021.

Evidence for Ngusu


  1. At the hearing, Ngusu relied on seventeen affidavits. Ngusu called four deponents of the various affidavits who were duly sworn and whose affidavit and oral evidence was duly tested.
  2. Charles Lesley had five affidavits tendered and marked Exhibit P.1 was filed on 22 June 2021, Exhibit P.2 was filed on 27 July 2021, Exhibit P.3 was filed on 3 August 2021, Exhibit P.4 was filed on 9 August 2021 and Exhibit P.5 was filed on 1 September 2021. Otto Kewafa had three affidavits tendered and marked, Exhibit P.6 was filed on 22 June 2021, Exhibit P.7 was filed on 26 July 2021 and Exhibit P.8 was filed on 3 August 2021. Albert Sin had two affidavits tendered and marked, Exhibit P.9 was filed on 22 June 2021 and Exhibit P.10 was filed on 28 July 2021. Alphonse Mongka had one affidavit tendered and marked Exhibit P.11 which was filed on 30 August 2021.
  3. By consent, Ngusu tendered six affidavits sworn by six persons. Exhibit P.12 was sworn by Reuben Mamong and filed on 22 June 2021, Exhibit P.13 was sworn by Hendrick Awarin and filed on 22 June 2021, Exhibit P.14 was sworn by Smelda Nason and filed on 22 June 2021, Exhibit P.15 was sworn by Lukas Sidion and filed on 22 June 2021, Exhibit P.16 was sworn by Joseph Steven and filed on 22 June 2021 and Exhibit P.17 was sworn by Emmanuel Isaac and filed on 28 July 2021. These six affidavits were duly served and identified in both Ngusu’s notice to rely and the notice to cross-examine filed by VJ and Waowao. Counsel for VJ and Waowao consented to their tender without the need for cross-examination including the affidavit of counsel for Ngusu Mr Isaac who was available.
  4. Counsel for Ngusu informed the court the five witnesses who swore those affidavits for Ngusu earlier had switched sides and swore affidavits in support of VJ and Waowao in the proceedings in the Supreme Court which sought leave to appeal this court’s decision of 8 August 2021 and the Supreme Court refused their application for leave to appeal on 12 January 2022. Parties returned to this court and progressed this matter to trial. Their failure to attend to give evidence was not explained despite the understanding of Ngusu that they were at home in the project area and were aware the trial was taking place.

First witness for Ngusu – Charles Lesley


  1. Charles Lesley attested to the formation of Ngusu and to events leading to the signing of the Memorandum of Understanding and Logging and Marketing Agreement with VJ in his capacity as chairman of Ngusu and the recognized leader of all landowner Clans and the company Ngusu. He also gave sworn and undisputed evidence that VJ failed and refused, despite repeated requests by executives of Ngusu, to provide Ngusu with copies of the Memorandum of Understanding and Logging and Marketing Agreement from the time they were executed until about August 2021 when Ngusu’s lawyers were served with an Affidavit of Chew Pang Heng filed on 4 August 2021. Charles Lesley also said he and his executives were unable to obtain independent legal advice as to the terms of the Memorandum of Understanding and Logging and Marketing Agreement prior to execution of those agreements. As a result, they were not aware of all terms of those agreements and therefore were deprived of their rights to know and understand their rights and obligations and those of VJ under the agreement.
  2. The Forest Clearance Authority was issued by PNGFA to Ngusu and Charles Lesley as chairman of Ngusu was made aware of the terms of the Forest Clearance Authority, the most critical term being the lodgment of the Performance Bond with PNGFA within 21 days of issuance of the Forest Clearance Authority. That period expired on 28 October 2020. It was conceded by VJ that the performance bond was issued by First Investment Finance Limited on 9 June 2021 which was late by a period of over seven months. Charles Lesley also gave evidence that the Forest Clearance Authority was at risk of being deemed void by PNGFA and that would have exposed Ngusu to major ramifications to its detriment.
  3. Charles Lesley also gave evidence that Ngusu had discovered that VJ had engaged another company Mekar PNG Limited to enter the project site and perform the duties of VJ without the prior knowledge and approval of Ngusu. Ngusu took this action of VJ as a breach of trust and a serious breach of the understanding reached with VJ.
  4. Charles Lesley then gave evidence as to previous negative experiences with VJ or Vanimo Jaya over similar logging agreements over the whole Open Bay area which also turned out to be a major failure.
  5. Charles Lesley discussed actions of Ngusu to then engage another forestry developer Masstim Limited with whom Ngusu entered into a new Logging and Marketing Agreement. That was the subject of proceedings brought by VJ to stall performance. Interestingly, Waowao was a signatory of the Logging and Marketing Agreement on behalf of Ngusu with Masstim.
  6. Charles Lesley gave evidence that at a meeting of all landowners including shareholders, directors and secretaries of Ngusu on 18 April 2021, it was resolved to terminate the agreements with VJ. In the minutes of that meeting, Charles Lesley reported to the landowners that there was considerable delay by VJ in progressing the project despite Ngusu being loyal and patiently waiting for the fruits of the project including greater education and health services, agricultural projects for crop farming and other spin off benefits which would improve their standard of living in and around the project area.
  7. The meeting also discussed the desire to engage a new developer. The meeting also noted there were rumors VJ had engaged another contractor without the knowledge and approval of Ngusu and the landowners. The meeting also detailed numerous issues where VJ had failed to meet expectations of landowners in establishing nurseries for agriculture crops and support with wages for workers and other associated costs and commitments. There was unanimous agreement of all landowners to Ngusu to terminate the agreements with VJ. The minutes showed the Second Defendant Waowao was present at that meeting. Charles Lesley’s evidence shows Waowao supported Charles Lesley and the executives in engaging Masstim in Waowao witnessing execution of the Logging and Marketing Agreement with Masstim signed by Charles Lesley and Albert Sin.
  8. Charles Lesley in his affidavit filed on 26 July 2021 [Exhibit P.2] attests to calling a meeting of all landowners and directors of Ngusu on 4 July 2021 at Kavundeki Village, Rural Sinivit LLG, Pomio District. Waowao was also invited but failed to attend. The meeting resolved to support Charles Lesley and his team of executives in pursing this court proceeding and to also engage Masstim Ltd. Interestingly, Nason Yao, Charles Dominicus and Jeffery Dominicus were also present and endorsed the resolution of the meeting of 4 July 2021. As discussed below, they all swore affidavits which were filed in this proceeding and were relied on by VJ and Waowao at trial.
  9. Charles Lesley also attests to calling another meeting of all landowners and directors of Ngusu on 17 July 2021 at Kavundeki Village, Rural Sinivit LLG, Pomio District. Charles Lesley said they wanted “to give an opportunity to Steven Waowao to attend as he was one of us.” Waowao failed to attend despite being repeatedly contacted by the Chairman. The resolutions of the meeting of 4 July 2021 were reaffirmed in the meeting on 17 July 2021 especially the decision to terminate the MOU and LMA with VJ.

Three more witness who gave evidence in court for Ngusu – Otto Kewafa, Albert Sin and Alphonse Mongka


  1. Three more witnesses namely Otto Kewafa, Albert Sin and Alphonse Mongka were called and gave evidence for Ngusu. Otto Kewafa was a secretary of Ngusu and Albert Sin was a leader of Avasaria Clan. Both were steadfast in their support for the evidence of their Chairman Charles Lesley which they attested to in their various affidavits and which they reaffirmed in evidence at the trial. They also confirm having attended the meetings of Ngusu of 4 and 17 July 2021 and endorsed the resolutions passed at those meetings. Alphonse Mongka said he was a forester by profession who was assisting Ngusu and the Chairman Charles Wesley and he was the person who served Ngusu’s letter of termination dated 20 April 2021 (of the MOU and LMA) on Chew Peng Heng on 7 May 2021 at VJ’s office in Port Moresby. I found them all to be truthful witnesses and their recollection of all critical events was accurate, consistent and sincere. Despite challenges in cross-examination, they remained firm and believable.

Five more witnesses – sworn affidavits tendered by consent for Ngusu – Reuben Mamong, Hendrick Awarin, Smelda Nason, Lukas Sidion and Joseph Steven


  1. Five more witnesses for Ngusu provided duly sworn affidavits. These deponents were not called by Ngusu as they were not at the courthouse but their affidavits were tendered by consent. Reuben Mamong, Hendrick Awarin and Smelda Nason said they were directors on Ngusu board. Lukas Sidion said he was a member of Avasaria Clan and Joseph Steven said he was a member of Mavang Clan. They all swore that they had read the affidavits of Charles Lesley and some others mentioned above and they affirmed their support for the evidence of their Chairman Charles Lesley and the executives of Ngusu in terminating the MOU and LMA with VJ. They also confirm having attended the meetings of Ngusu of 4 and 17 July 2021 and endorsed the resolutions passed at those meetings. I accepted their evidence as truthful and not disputed by VJ and Waowao although I note their evidence was untested. Their evidence did not introduce anything that was not addressed in evidence by other witnesses for Ngusu. There was nothing controversial in their evidence so I accept that evidence.

Evidence for VJ and Waowao


  1. At the hearing, VJ and Waowao relied on eight affidavits. Six deponents of the following affidavits were duly sworn and their oral evidence was duly tested. Their affidavits were duly tendered and marked – Exhibit D.1 – Steven Waowao filed on 26 July 2021, Exhibit D.2 – Lison Namas filed on 26 July 2021, Exhibit D.3 – Nason Yao filed on 26 July 2021, Exhibit D.4 – Christopher Dominicus filed on 22 July 2021, Exhibit D.5 – Jackson Allan filed on 22 July 2021 and Exhibit D.6 – Jeffrey Dominicus filed on 26 July 2021.
  2. Counsel for Ngusu did not object to the tender of the two affidavits of Chew Peng Heng which were marked as Exhibit D.7 – Chew Peng Heng filed on 26 July 2021 and Exhibit D.8 – Chew Peng Heng filed on 4 August 2021. These two affidavits were duly served and identified in the notice to rely filed by VJ and Waowao and the notice to cross-examine filed by Ngusu. Counsel for VJ and Waowao informed the court Chew Peng Heng was in Port Moresby but unable to travel to Kokopo for the trial for medical reasons. No medical certificate was produced.
  3. Waowao attests there are just two landowning clans namely Avasaria Clan and Mavang Clan. He confirms incorporation of Ngusu which is the company formed to represent the interests of the landowner clans. He also confirms Charles Lesley was the chairman of Ngusu. He then says majority of landowners did not support the decision to terminate the MOU and LMA with VJ. He says they wanted VJ to remain as the project developer. He also questioned the appointment of Emmanuel Lawyers and the commencement of these legal proceedings which he says was not duly authorised by the landowners.
  4. This evidence of Waowao is supported by evidence by four directors of Ngusu namely Lison Namas, Nason Yao, Christopher Dominicus and Jeffery Dominicus. The other secretary of Ngusu Jackson Allan also filed an affidavit stating he did not recall sending out notices to directors to meet to discuss termination of the contracts with VJ and likewise to meet for commencement of these proceedings. In cross-examination, they did not dispute being present at the various meetings of Ngusu called by Charles Wesley on 18 April 2021 where Ngusu and landowners resolved to terminate the contracts with VJ. It was also established that most of them were also present at the meetings of Ngusu of 4 and 17 July 2021 where Ngusu and the landowners affirmed their support for their Chairman Charles Lesley and the actions of Charles Lesley and the executives of Ngusu to terminate the contracts with VJ, engage Emmanuel Lawyers and commence these proceedings. I found these witnesses to be inconsistent with their evidence and I found them to be dishonest with their recollection of events. The meetings were called in the same manner as that adopted from the start with the formation of the landowner company Ngusu so their evidence disputing the actions of the Chairman were not believed.
  5. Chew Pang Heng’ affidavit evidence seeks to challenges the evidence of Charles Lesley as to the calling and conduct of meetings of Ngusu that led to the termination of the contracts with VJ but, as stated above, I have accepted the evidence of Charles Wesley which was corroborated by landowners, directors and a secretary. His evidence also confirms arranging the Performance Bond dated 9 June 2021. He did not comment on the fact that was obtained over seven months late as claimed by Charles Lesley.
  6. Chew Pang Heng also filed an affidavit confirming the execution of the MOU and LMA between Ngusu and VJ. By this, he affirms Ngusu was the company formed for and representing the landowners with Charles Lesley as the leader of all clans and the chairman of Ngusu. He goes on the say VJ spent in the vicinity of K2million in securing the FCA from PNGFA and secured approvals for construction of the basecamp and log pond. He also points to the global covid 19 pandemic as a major cause for delays.
  7. I note Chew Pang Heng’s evidence was untested as he was not called to attest and be subject to cross-examination by counsel for Ngusu. Where his evidence is in direct or implied contradiction of the evidence of Charles Wesley and other witnesses for Ngusu who were called and subjected to cross-examination by counsel for VJ and Waowao, I have given greater weight to the evidence of those witnesses for Ngusu over that of Chew Pang Heng. I have already assessed the evidence of witnesses who were called an gave evidence at trial for VJ and Waowao.

Analysis of Ngusu company extract and deponents who gave evidence


  1. From the company extract for Ngusu issued by IPA on 16 July 2020, persons holding positions in the company who swore affidavits in the proceedings for Ngusu were Charles Lesley, the company chairman who also held fifty percent of the shares in the company, two directors in Hendrick Awarin and Rupen Mamong and one of the two secretaries Otto Kewafa.
  2. For VJ and Waowao, affidavits were sworn by Nason Wao, a director and a person who held fifty percent of the shares in the company, three directors in Jeffrey Dominicus, Christopher Dominicus and Lison Namas and the other secretary Jackson Allan.
  3. The IPA company extract also shows that all shareholders, directors and secretaries are members of only the Mavang Clan. There are no representatives from the Avasaria Clan and Allanas Clan holding any position in their company Ngusu.

Submissions


  1. I have considered the submissions of Ngusu and the submissions of VJ and Waowao which were all repeated orally in court.
  2. I am satisfied the various meetings of Ngusu were all duly called, constituted and conducted. The manner and process observed from formation of Ngusu and in performing its objectives after incorporation and in its dealings with VJ were consistent and not unusual for a typical landowner entity with directors and shareholders living in their respective villages and communicating orally. There was no dispute that they all had access to mobile phones and were able to communicate amongst each other or simply walk from one village to the other to organise themselves and hold meetings. They all shared a common interest and goal and pursued those aims in the simplest manner needed and that is by talking to each other in person.

Findings


  1. From my analysis of the evidence and consideration of submissions of the parties, I make the following findings:
    1. Ngusu was never provided with copies of the MOU and LMA by VJ until Ngusu’s lawyer was served with an affidavit of Chew Peng Heng in this proceeding to which copies of the MOU and LMA were annexed. Prior to that, Ngusu was never fully aware of their rights and obligations and neither was Ngusu fully aware of VJ’s rights and obligations under the MOU and LMA.
    2. Ngusu was aware of the duty of VJ to organise the Performance Guarantee which was a condition of the issue of the FCA issued by PNG Forest Authority to Ngusu on 7 October 2020.
    1. The Performance Guarantee was required to be lodged with PNG Forest Authority by 28 October 2020.
    1. A Performance Guarantee was issued by First Investment Finance Limited on 9 June 2021 and subsequently lodged with PNG Forest Authority.
    2. The Performance Guarantee was lodged late by a period of over seven months.
    3. By the late lodgement of the Performance Guarantee, the FCA was liable to be deemed to be void and cancelled by PNG Forest Authority.
    4. Ngusu was unable to reach and discuss with VJ the progress of their respective duties and responsibilities under the MOU, LMA and FCA despite numerous enquiries.
    5. Ngusu resolved on 18 April 2021 to terminate the MOU and FMA with VJ. The meeting on 18 April 2020 was duly called and constituted. The process of calling the meeting of 18 April 2020 was consistent with the processes observed and conducted in meetings of Ngusu when Ngusu discussed, approved and executed the MOU and LMA with VJ.
    6. On 7 May 2021, Ngusu duly delivered the letter of termination dated 20 April 2021 to VJ which letter was signed by Ngusu Board Chairman. That letter was also signed by leaders of all three clans who were the owners of the land.
    7. The resolutions and actions to terminate the MOU and LMA with VJ were duly ratified in subsequent meetings of shareholders and directors of Ngusu conducted on 4 and 17 July 2021. That was during a period immediately after commencement of these proceedings on 22 June 2021.
    8. The actions of Steven Waowao and other directors and shareholders in supporting VJ are questionable. All were working with the Chairman and majority of the Ngusu landowners. All, if not most, were present at the meetings of Ngusu called by the Chairman and Secretary and conducted on the 18th of April 2021 and then on the 4th and 17th of July 2021. If they had issues to raise or objections to the actions of the Chairman and Board of directors, their proper course was to speak with the Chairman or, better still, to communicate their position in writing and demand the calling of special meetings of directors or shareholders through proper process with the Chairman and Secretary. They should have obtained independent and competent legal advice. They failed to do that and have themselves to blame. They were enticed to support VJ to their detriment.

ORDER


  1. I make the following orders:
    1. Ngusu Glan Limited duly terminated the MOU and / or LMA with VJ Holdings Limited effective 7 May 2021.
    2. VJ Holdings Limited’s entry to Ngusu Glan Limited’s land after 7 May 2021 was unlawful.
    3. The actions of VJ Holdings Limited and their agents and contractors in clearing the land after 7 May 2021 was unlawful.
    4. Ngusu Glan Limited is at liberty to exercise its rights under the FCA issued by PNG Forest Authority on 7 October 2021.
    5. Parties shall return to court at 9am on 11 July 2021 for directions as to the further conduct of this matter.
    6. VJ Holdings Limited shall pay Ngusu Glan Limited’s costs of the proceedings to be assessed on a party and party basis and to be taxed if not agreed.

Decision accordingly:
Emmanuel Lawyers: Lawyer for the Plaintiff
Nelson Lawyers: Lawyer for First and Second Defendants


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