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Mangope v Bando [2022] PGNC 520; N10035 (14 October 2022)

N10035

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 65 OF 2020

BETWEEN:

PETER MANGOPE

-First Plaintiff-

AND:

JACK BOM TONGOPE

-Second Plaintiff-

AND:

JOHN TIPA

-Third Plaintiff-

AND:

ALOPEA MOKAI

-Fourth Plaintiff-

AND:

WILLIAM BANDO

-First Defendant-

AND:

HELA PROVINCIAL GOVERNMENT

-Second Defendant-

Waigani: Tamade AJ

2022: 28^th September; 14^th October

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

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

Cases Cited:

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

Legislation:

Professional Conduct Rules 1989

Counsel:

Mr Lyons Putupen, for the Plaintiff

Mr Victor Nape, for the Defendants

14^th October, 2022

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

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

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

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

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

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

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

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

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

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

11. On review of this matter to better understand this case, there is an Affidavit of one Rolence Maprik Haba filed on 2 December 2021 in these proceedings. Mr Haba states in his affidavit that he is the First Plaintiff in proceedings WS 386 of 2013 and is an interested party to these proceedings. He confirms that WS 386 of 2013 concerns the acquisition of the Tari Township Land and land-ownership issues and annexes a copy of the Writ of Summons in WS 386 of 2013.

12. Mr Haba also annexes a copy of a Supreme Court decision on WS 368 of 2013 which is the decision of SCA No. 117 of 2014 also referenced as Peter Mangope and Others v Rolence Maprik Haba and Ors (2015) SC1459. In that decision, it can be gleaned that proceedings WS 386 of 2013 was referred for Court annexed mediation. During the course of the mediation, several applications were filed by parties seeking funds from payments made into the National Court Trust Account and the matter was heard and Consent Orders endorsed by the Court. On appeal, the Supreme Court considered the issue as to the role of a mediator who is also a judge hearing a motion filed in the course of the mediation. The issues before the Supreme Court also considered whether the Consent Orders before the National Court included the Consent of all parties as some of the parties raised concerns that their consent was not obtained and claimed a breach of natural justice that they were not heard in the Consent Orders that approved payments from funds in trust to some of the parties. The appeal was upheld, and the matter was remitted to the National Court for the pending applications to be heard before another judge.

13. Mr Haba also states in his affidavit that there are pending applications in WS 386 of 2013 which I take it that has not been dealt with. Mr Haba also states that the Mediated Agreement referred to by the Plaintiffs in these proceedings has not been agreed to by all parties in WS 386 of 2013. It is clear from these proceedings that not all parties in WS 386 of 2013 have been named in these proceedings if these proceedings were to enforce a mediated agreement in WS 386 of 2013. The Consent Orders handed up to the Court by Mr Putupen and Mr Nape do not include any consent of Mr Haba or his lawyers in WS 386 of 2013.

14. I, therefore, find after reading through the submission of Mr Putupen and the Affidavits of Mr Tongope, Mr Mangope and Mr Haba and my Associate’s enquiry with the Registrar of the ADR Centre after the ADR Centre had enquired with the Chief Magistrate Mr Mark Pupaka and His Honour the Deputy Chief Justice Ambeng Kandakasi that:

1. The Consent Orders in these proceedings in which Mr Putupen and Mr Nape have agreed to hand up concerning WS 386 of 2013 are flawed and misconceived as it does not contain the agreement of all parties in WS 386 of 2013. Mr Putupen and Mr Nape are doing exactly what happened in WS 386 of 2013 which was the subject of the Supreme Court Appeal in Peter Mangope and Others v Rolence Maprik Haba and Ors (2015) SC1459 wherein some parties to those proceedings were not consulted in the signing of Consent Orders and those parties successfully appealed to the Supreme Court.
   
2. These proceedings though it seeks to enforce a ‘purported mediated agreement’ in WS 386 of 2013 do not include all the parties in WS 386 of 2013 and therefore it is flawed and is an abuse of the process of the Court pursuant to Order 12 Rule 40 of the National Court Rules.
   

100. Mr Putupen and Mr Nape have not disclosed to this Court the full details of the status of WS 386 of 2013 that there are pending motions in that matter that has yet to be dealt with by the Court. Mr Putupen and Mr Nape as lawyers and officers of the Court have the duty to this Court to give full and frank disclosure of all related matters, even as to matters that go against their clients and to ensure the Court file or court documents in WS 386 of 2013 is before this Court so the Court is fully informed of all matters.
     

4. The Mediated Agreement that Mr Putupen and Mr Nape have relied on for the Court to endorse as annexed to the Affidavit of Mr Mangope and Mr Tongope does not have the consent of all parties in WS 386 of 2013 and where it indicates the names of the mediators, it is unsigned.
   
5. The Court Orders in WS 386 of 2013 made on 2 September 2014 which endorsed by Consent of only some parties for payments from the National Court Trust Account and other matters as to the presentation of ILG Certificates etc was quashed by the Supreme Court in SCA 117 of 2014.
   
6. The purported Mediated Agreement relied on by Mr Putupen and Mr Nape entered into on 13 November 2018 which was not endorsed by all parties in WS 386 of 2013 did not come about as a result of His Honour Justice Ambeng Kandakasi or the Chief Magistrate His Worship Mr Mark Pupaka overseeing the mediation. Mr Putupen and Mr Nape simply got the consent of only some parties they perceive are the right parties to sign the Mediated Agreement and insisted that because the matter was referred to mediation before Justice Ambeng Kandakasi (as he was then) and Magistrate Pupaka (as he was then), the agreement was a mediated agreement with mediation conducted by Justice Kandakasi and Magistrate Pupaka when it was not. Mr Putupen and Mr Nape have deliberately misled the Court that this purported mediated agreement was arrived at by a proper mediation overseen by Justice Kandakasi and Magistrate Pupaka.
   
7. I also find that the Form 2 (of the ADR Rules) Mediation Certificate dated 9 July 2019 as annexure “C” to the Affidavit of Jack Bom Tongope and as annexure “U” in the Affidavit of Peter Mangope is misleading and deceptive as this Certificate does not relate to the purported Mediated Agreement relied on by the Plaintiffs and Mr Putupen and Mr Nape.
   
8. That the conduct of Mr Putpuen and Mr Nape and the Plaintiffs who have deposed to affidavits on oath, Mr Jack Bom Tongope and Mr Peter Mangope are criminal and are tainted with fraud and deceit.
   

15. Section 3 (i)(ii)(ii)(iv)(v), 4(1) and 15(2) and (5) of the Professional Conduct Rules 1989 are applicable as to the conduct of Mr Putupen and Mr Nape:

3. DUTY OF EVERY LAWYER.

It is the duty of a lawyer–

(a) not to engage in conduct (whether in pursuit of his profession or otherwise) which–

(i) is illegal; or
(ii) is dishonest; or
(iii) is unprofessional; or
(iv) is prejudicial to the administration of justice; or
(v) may otherwise bring the legal profession into disrepute; and

(b) to observe the ethics and etiquette of the legal profession; and

(c) to be competent in all his professional activities; and...

4. MAINTAINING PROFESSIONAL INTEGRITY.

(1) A lawyer shall not–

(a) attempt to further his client’s case by unfair or dishonest means; or

(b) knowingly–

(i) assist; or
(ii) seek to induce,

a breach of these Rules by another lawyer.

15. COURT PROCEEDINGS.

(2) A lawyer shall not knowingly deceive or mislead the Court.

(5) A lawyer shall ensure that the Court is informed of any relevant decision on a point of law or any legislative provision of which he is aware and which he considers to be relevant, whether it be for or against his contention....

16. I find the conduct of Mr Putupen first and foremost as calculated to mislead the Court and is unbecoming as a lawyer and an officer of the Court to try to evade the consent of other parties in WS 386 of 2013, to withhold important information and to outrightly lie as to a document that was never arrived at by a mediation with His Honour Justice Kandakasi(as he was then) and His Worship Magistrate Pupaka. I find that the subject purported mediated agreement was signed off by only some parties and presented to look like it was mediated by Justice Kandakasi (as he was then) and Magistrate Pupaka (as he was then).

17. The duties of lawyers to the Court are fundamental to the due dispatch of justice. The Professional Conduct Rules regulate the profession of lawyers and Mr Putupen and Mr Nape as senior lawyers have embarked on a treacherous path to get the Court to endorse a mediated agreement which is false, untrue and their conduct I find is deceitful to say the least to benefit even themselves.

18. I find that these proceedings are a sham, are frivolous and vexatious and were filed for an unlawful purpose, to use the Court to validate a false document. Mr Putupen and Mr Nape’s conduct are wanting of their oaths as officers of the Court, and they shall be referred to the police for the subject mediated agreement as being fraudulent and they shall be also referred to the Lawyers Statutory Committee for their unbecoming professional conduct as breaching the Professional Conduct Rules.

19. The Court, therefore, makes the following orders:

1. These proceedings are dismissed in their entirety.
2. The Registrar of the National Court shall refer Mr Lyons Putupen and Mr Victor Nape to the police for fraud of a purported Mediated Agreement entered into on 13 November 2018.
3. The Registrar of the National Court shall also refer Mr Lyons Putupen and Mr Victor Nape to the Lawyers Statutory Committee for breach of the Lawyers Professional Conduct Rules in regard to this matter.
4. Mr Jack Bom Tongope and Mr Peter Mangope shall also be referred by the Registrar of the National Court to the police for fraud, deceitful conduct and for perjury for deposing to untrue statements in their Affidavits.
   

Orders accordingly.

________________________________________________________________

Putupen & Associates: Lawyers for the Plaintiffs

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