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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO. 121 OF 2023 IECMS
KEREN NUGI T/A PANG LEGAL SERVICES
Plaintiff/Third Cross-Defendant
V
KOMAP MAPULGEI BUSINESS GROUP INC.
First Defendant/First Cross Defendant
JEFFERY ABONE T/A PARKIL LAWYERS
Second Defendant/Second Cross Defendant
PETER KUMI KUI FOR HIMSELF AND AS REPRESENTATIVE OF THE BENEFICIARIES OF MAPULGEI TRP INVESTMENT
Third Defendant/Cross-Claimant
WAIGANI: ANIS J
3, 11, 28 APRIL, 27 AUGUST 2025
CIVIL LAW – Setting aside consent order of another Nationale Court premised on irregularity, torts of deceit (fraudulent conducts) and fraud – whether plaintiff met the required pre-requisites and whether the Court should set-aside the consent order – consideration - ruling
CROSS-CLAIM – whether the actions of the first and second cross-defendants amount to irregularity and fraud – whether cross-claimant met the pre-requisites to set-aside the consent order – consideration – ruling
PRACTICE AND PROCEDURES – whether the circumstance of the case warrants the Court to, in the interest of justice, exercise its powers under s.155(4) of the Constitution to issue additional and consequential orders – consideration - ruling
Cases cited
Francis Kunai and Ors v. Papua New Guinea Forest Authority and Ors (2018) N7570
Independent State of Papua New Guinea v. Kunai (2020) SC2029
Re Peter Naroi [1983] PNGLR 176
Paul Torato v. Sir Tei Abal [1987] PNGLR 403
Simon Mali v. The State (2002) SC690
Pius Nui v. Senior Sergeant Mas Tanda (2004) N2765
Hegele v. Kila (2019) N8119
Karen Nugi v. Komap Mapulgei Business Group Inc. (2023) N10271
Makop On v. Billy Parako (2003) N2593
Foxie Kaeake and 1 Or v. Felix Kange and Ors (2023) N10567
Magiten v. Moses (2006) N5008
Mangobe v. Estate of Mokola Kamiali (2022) N9582
Janet Roland Sios v. Philma Kelegai and Ors (2020) N8594
Ling Seng Chuan v. Kenamu (2023) N10395
Gabi v Nate [2006] PGNC 178
Ombudsman Commission of PNG v Denis Donohoe [1985] PNGLR 348
Okuk and State v Fallscheer [1980] PGSC 13
Hamaka v. Kombri (2022) N9916
Marat v. Hanjung Power Ltd (2014) SC1357
David Wereh and Ors v. James Wamuk (2023) SC2487
Central Bank of Papua New Guinea v Tugiau [2009] SC1013
Avia Aihi v. The State [1981] PNGLR 81
John Mua Nilkare [1998] PNGLR 472
Inovest Ltd v. Pruaitch (2014) N5949
Porgera Gold Mines Ltd v. Kimaleya Ondalane and Ors (2023) N10274
William Lakain v. Senior Sergeant Andrew Wilfred and Ors (2023) N10270
Gadigi v Logae (2021) SC2102
Michael Newall Wilson v Clement Kuburam (2016) SC1489
Jennifer Gawi v. Anna Gawi and Ors (2024) N10860
Application by Anderson Agiru (2002) SC686
Counsel
K Nugi, the plaintiff, in person
J Abone, for the first defendant
Nil appearances for the second defendant
L Aigilo for the third defendants
JUDGMENT
1. ANIS J: This matter was trialed on 3 and 11 April 2025. I reserved my ruling thereafter to a date to be advised.
2. Counsel for the first defendant Jeffrey Abone, turned up in Court very late on the day of the hearing on 3 April 2024. Mr. Abone is also the second defendant. His counsel Samuel Olewale did not appear at all at the hearings. No explanation was provided by Mr. Olewale as to why he was unable to appear and to act for the second defendant, Mr. Abone. Mr. Abone himself did not provide any explanation or file and serve any formal applications beforehand to explain his situation. But in what I would describe as an unorthodox manner taking into account the interest of justice, Mr. Abone was permitted, despite the fact that the third defendant had closed on its evidence, to tender his client’s evidence. In so far as he being a defendant was concerned, the trial had concluded, and his lawyer was not present to make any submissions in that regard. Again, no formal application had been made by Mr. Abone’s lawyer beforehand to say why the trial should not proceed. The trial date was set down more than 2 months ago on 17 February of 2025. The first and second defendants had ample time to address the Court on preliminary matters, yet they did nothing thus put themselves in a precarious situation at the hearing.
3. After the evidence were tendered and the trial was formally concluded on 3 April, the matter was adjourned by consent to 11 April 2025 for presentation of closing submissions. The plaintiff and the third defendants appeared on that day and presented their closing submissions. At the close of the submissions hearing on 11 April, counsel for the first defendant Mr. Abone, who had again turned up very late in Court, sought permission to present his client’s closing submissions. This was because counsel had appeared after or at the time when the plaintiff was presenting her responding closing submissions to the closing submissions of the third defendants. This time, I decided against granting counsel’s request as it was the second time that Mr. Abone had appeared in Court very late and after matters had concluded or reached their conclusions. The first time counsel was late was at the actual hearing on 3 April 2025. I would refer to the transcript of the proceeding for my reasonings. And the second time was on 11 April, and again, I would refer to the transcript of proceeding for my reasonings. In closing on 11 April, I urged Mr. Abone to observe the Court processes and consult the National Court Rules (NCR) to make an appropriate application. I notified counsel that closing submissions had concluded before counsel stood up and attempted to present his client’s submissions.
4. The first defendant, through Mr. Abone, later filed a notice of motion on 14 April 2025. In the notice of motion, the first defendant sought, amongst others, leave of court to present and tender its closing submissions. The motion was listed for hearing at 11am on 28 April 2025. Notices were issued to the first defendant’s counsel, Mr. Abone, and to the other parties, of the return date. On the return date of the motion, the matter was called. Only the plaintiff appeared in Court to respond to the notice of motion. Mr. Abone failed to appear on that day. Upon satisfying myself that the parties, and especially, that notification had been given to Mr. Abone to appear, I dismissed the first defendant’s notice of motion of 14 April 2025. I would refer to the transcript of proceeding for that day for my reasonings in dismissing the motion.
5. Upon dismissing the motion, I reserved my decision in regard to the substantive matter.
6. I will now rule on the matter.
BACKGROUND
(i) Plaintiff’s Claim
7. The plaintiff commenced this proceeding to set aside a purported consent order that was obtained in an earlier proceeding, namely, WS 1273 of 2012, Francis Kunai and Ors v. The National Forest Authority and Ors (WS 1273/12). The plaintiff was the counsel that had acted for the third defendants Mapulgei TRP beneficiaries. On 4 September 2018, the National Court in WS 1273/12 awarded, amongst others, a sum of K19,298,262.63 (inclusive of interest at 8% per annum) to the Mapulgei TRP beneficiaries. The final order of the Court (Court Order of 4 September) states,
......
(b) Mabugei a sum of K13,146,738.49
......
8. For clarity, the third defendants herein (i.e., Peter Kumi Kui for himself and as representative of the Beneficiaries of Mapulgei TRP Investment), although were not expressly named in WS 1273/12 as one of the plaintiffs, were regarded as part of the second plaintiff throughout the said proceeding as well as throughout the mediation processes that the parties had undergone. This fact is not an issue in the present matter and is well known amongst the parties as well as the Court in WS 1273/12. The second plaintiff in WS 1273/12 is a business group and is operated by one Ruben Kin. He was initially engaged by the beneficiaries of the Mapulgei TRP landowners to represent them and pursue the matter on their behalf. His entity was named as the second plaintiff in WS 1273/12. The third defendants decided to be represented separately thus joined and were regarded as part and partial of the second plaintiff in WS 1273/12.
9. The issues in this proceeding do not concern or involve the other plaintiffs or TRP landowners who were parties in WS 1273/12.
10. Distribution of the Court’s award for the second plaintiff in WS 1273/12 became an issue, that is, between the consultant Ruben Kin and his business group together with his lawyer Mr. Abone and the third defendants (also referred to herein as Mapulgei TRP landowners or beneficiaries). As stated above, Ms. Nugi, who is the plaintiff in the present proceeding, acted for the third defendants or Mapulgei TRP landowners at the material time.
11. So, on 22 December 2021, the National Court in WS 1273/12, amongst others, issued mediation orders consistent with term 5 of the Court Order of 4 September. In January of 2022, a court-annexed mediation was held in Mt Hagen regarding the distribution of the second plaintiff and Mapulgei TRP landowners’ shares of K13,146,738.49. The mediation was conducted by Mediator Mark Pupaka (current Chief Magistrate of Papua New Guinea). On 12 January 2022, the Mediator issued a formal certificate under Rule 9(5) of the now repealed Alternative Dispute Resolution (ADR) Rules that existed preceding 1st September 2022. The orders in the Certificate (Mediation Certificate) read in part,
12. What was resolved there, which is relevant for this purpose, included an agreement by Mabugei TRP beneficiaries to pay from their Final Adjusted Judgment Award (FAJA):
(i) a sum that shall represent 5% of their FAJA to the plaintiff for her legal fees;
(ii) a sum that shall represent 15% of their FAJA to Ruben Kin as his consultancy fees as their principal instructing consultant; and
(iii) a sum that shall represent 10% of their FAJA to Mr Abone’s law firm for his legal fees.
13. The plaintiff claims in this proceeding that unbeknown to her and whilst she was on leave in December of 2022, the defendants, including Mr. Abone and a law firm called Jefferson Lawyers, facilitated and entered into a purported Consent Order dated 28 December 2022 (PCO) before Kandakasi DCJ. The terms of the PCO read in part as follows:
THE COURT ORDERS CONSENT OF ALL PARTIES THAT:-
TRP
Total K10,369,764.50
4.1 Parkil Lawyers shall be paid 10% of the judgment sum from the Mabugei Timber Rights Purchase (TRP), for professional and legal services rendered by Jeffery Abone.
4.2 Jefferson Lawyers shall be paid K45,000 from the funds in the National Court Trust for the Second Plaintiff, of Mabugei TRP, for professional and legal services rendered by Mr Jeff Lome.
4.3. Parties agree that Mr. Ruben Kin shall be paid 15% for consultancy services and 20% which is 10% for damages and 10% for the settlement of creditors from the judgment sum of Mabugei TRP.
4.4 The parties agree that Messrs Kui Kumi, Paul Pik, and Anis Peling shall be paid 19% to settlement their creditors with 9% and 10% for their cost, which shall be equally distributed between the three persons of the judgment sum for Mabugei TRP.
4.5 The parties agree that after the payment of term 5.1, 5.2, 5.3, and 5.4, the balance remaining of the judgment sum shall be equally distributed amongst the four (4) sub-clans of Mabugei Clan, in the following manner;
4.5.2 Komonbo Clan 25%
4.5.3 Elepie Clan 25%
4.5.4 Rupaipi Clan 25%
5.1 Jefferson Lawyers shall be paid K45,000 for legal and professional a sone and final payment for service rendered.
5.2 Messrs Kui Kumi, Paul Pik, and Anis Peling shall be paid 19% from their cost and to settlement their creditors (which is 10% cost at K160,316.56 and 9% for creditors at K144,248.90) and therefore a sum of K240,474.84. Subject to item 6.2 the parties agree that a sum of K60,000 shall be deducted from their cost to assist in settling the K200,000 fees received for mediation thereby leaving a sum of K140,000.00 to be settled by them upon receipt of their full fees on final judgment award settlement.
5.3 Subject to item 5.3, therefore a sum of K244,601.46 shall be paid into Parkil Lawyers Trust Account for distribution to Messrs Kui Kumi, Paul Pik and Anis Peling.
5.4 Messrs Kui Kumi, Paul Pik and Anis Peling agree to pay 10% of what they are entitled to which is 19% of the total judgment award to Mr Jacob Tiptip as his consultation fees which is inclusive of the funds he already received in the 21st December, 2021 mediation consent order. Mr Tiptip will not receive any paid from any funds in the National Court Trust now.
5.5 Ruben Kin shall be paid shall be paid:
5.5.1 15% of consultancy fees which is a sum of K240,474.84, and from these figure a sum of K60,000 will be deducted to settle consultancy fee received for mediation leaving a balance of K90,000,00 to be settled upon receipt of the settlement of his fee upon. Therefore a sum of K180,474.84 shall be paid into Parkil Lawyer’s Trust Account for payment of Ruben Kin’s consultancy fee.
5.5.2 20% for damages (10% which at K160,316.56) and the settlement of his creditors (10% which is at K160,316.56), and therefore a sum of K320,633.12 shall be paid into Parkil Lawyers’ Trust Account for payment of Ruben Kin’s creditors.
5.5.3 Therefore a total sum of K501,107.96 shall be paid to Parkil Lawyers Trust Account to be paid to Ruben Kin.
6.1 Kundobo Clan 25% K51,676.41
6.2 Komonbo Clan 25% K51,676.41
6.3 Elepie Clan 25% K51,676.41
6.4 Rupaipi Clan 25% K51,676.41
Total: K207,705.64
14. The plaintiff claims, which is not denied, that her mediated sanctioned legal fee of 5% was excluded in the PCO. Instead, she claims that this new law firm Jefferson Lawyers was purportedly appointed to replace her firm for the third defendants, and Jefferson Lawyers was included in the PCO to receive K45,000 for its service which was made as a one-off payment. She alleges herein, amongst others, that she never ceased to act for the third defendants at the material time; that she never filed a notice ceasing to act nor did she receive any formal instructions from her clients to cease work in WS 1273/12; she also claims that Jefferson Lawyers never filed a formal notice of change of lawyers to act for her former clients (i) before the parties entered into the PCO and also (ii) before they appeared before the Deputy Chief Justice to endorse the PCO on 28 December 2022.
15. The above material facts formed the basis for the plaintiff’s claim herein. The plaintiff therefore seeks declaratory orders from this Court to set aside the PCO on the basis that the manner in which the PCO was procured and endorsed was irregular. The plaintiff also pleads the tort of deceit against the defendants. The plaintiff claims that the PCO was obtained premised on fraudulent conducts or actions of the first, second and third defendants. According to the plaintiff’s Amended Writ of Summons and Statement of Claim filed 4 May 2023 (ASoC), the plaintiff seeks the following relief:
(ii) Cross-Claim
16. Let me address the Cross-Claim of the third defendants/cross-claimants.
17. The third defendants’ Defence & Cross-Claim was filed on 13 November 2024. In summary, the third defendants, in their defence, deny allegations that they conspired with the first and second defendants as alleged by the plaintiff in relation to the signing and endorsement of the PCO. They also support all the allegations made by the plaintiff against the first and second defendants in this proceeding, that is, allegations concerning irregularities, deceit including fraudulent conducts.
18. In regard to their Cross-Claim (C/Claim), the third defendants also make similar claims against the first and second defendants. They also raise allegations of fraud. The third defendant did not make any cross-claims against the plaintiff. In fact, the third defendants, in their pleadings, confirm that the plaintiff was duly appointed by them to act for them. They also allege that they never disengaged the plaintiff from acting as their lawyer at the material time that the PCO was signed and endorsed by the second defendant and Jeffery Lome of Jefferson Lawyers. They say that they never gave their instructions to Mr. Lome to act for them to replace the plaintiff. They accused the second defendant of conspiring with Mr. Lome and the first defendant to defraud them by entering into the orders as they had done on 28 December 2022. They also accused the second defendant, Mr. Abone, of attempting to defraud them with their beneficiary entitlements by inserting a term in the PCO where the State would pay the balance of their beneficiary funds totaling K17,169,097.04 into the trust account of his law firm. They said they did not give instructions to that effect.
19. The first and second defendants deny the allegations raised by the plaintiff and the third defendants/cross-claimants.
20. The detailed historical background of the matter is not relevant for this purpose. But it was summarised by Kandakasi DCJ at paras. [3] to [6] in Francis Kunai and Ors v. Papua New Guinea Forest Authority and Ors (2018) N7570 which is the original proceeding. I refer to that decision as reference in that regard.
EVIDENCE
21. Parties tendered their evidence without the benefit of cross-examination.
22. The plaintiff tendered a total of 6 affidavits. They were marked as Exhibit P1 (Affidavit of Karen Nugi filed 21 March 2023), Exhibit P2 (Affidavit of Karen Nugi filed 3 May 2023), Exhibit P3 (Further affidavit of Karen Nugi filed 10 May 2023), Exhibit P4 (Affidavit of Karen Nugi filed 27 March 2024), Exhibit P5 (Affidavit of Jacob Kop Tiptip filed 30 March 2024) and Exhibit P6 (Affidavit of Karen Nugi filed 27 March 2025).
23. The first defendant tendered one affidavit which was marked as Exhibit D1(i) (Affidavit of Peter Kum Kui filed 3 May 2023). The second defendant Mr. Abone was unrepresented and filed no evidence in his defence.
24. Counsel for the third defendants, Mr. Aigilo, tendered a total of 6 affidavits. They were marked as Exhibit D3(i) (Affidavit of Peter Kui Kumi filed 20 May 2024), Exhibit D3(ii) (Affidavit of Karen Nugi filed on 21 March 2023), Exhibit D3(iii) (Affidavit of Karen Nugi filed 3 May 2023), Exhibit D3(iv) (Affidavit of Karen Nugi filed 10 May 2023), Exhibit D3(v) (Affidavit of Karen Nugi filed 27 March 2024) and Exhibit D3(vi) (Affidavit of Jacob Tiptip filed 30 March 2024).
25. When the third defendant completed presenting its evidence, Mr. Abone announced his appearance for the first defendant. Mr. Abone’s lateness was unacceptable. However, counsel was permitted to tender his client’s evidence in the exercise of the Court’s discretion, that is, despite the fact that as a matter of practice, the first defendant, whom Mr. Abone represents, should have tendered its evidence ahead of the second and third defendants. Only 1 affidavit was accepted and tendered, which was marked as Exhibit D1(i) (Affidavit of Peter Kumi Kui filed 3 May 2023). The rest of the affidavits were objected to by the plaintiff and the third defendant, and therefore had to be considered by the Court but were rejected, and I would refer to the transcript of proceeding of 3 April 2025 for my reasonings.
CONDUCT OF JEFFREY ABONE AT THE HEARING
26. It would be a remiss of me not to address the conduct of counsel for the first defendant Jeffrey Abone throughout the trial of the matter. The same can be said of his lawyer Mr. Olewale who failed to appear at the hearings to represent Mr. Abone.
27. This is not the first time the Court is critical of Mr. Abone’s conduct as a lawyer. Makail J, sitting as a single Supreme Court Judge, had expressed his concerns of Mr. Abone, when deliberating on an application for joinder in the original claim that had been appealed to the Supreme Court. See case: Independent State of Papua New Guinea v. Kunai (2020) SC2029. Makail J stated at paras. 11 and 12,
Professional Conduct of Lawyers
11. When I asked a direct question to Mr Abone of counsel for the respondents if the applicants were listed as one of the plaintiffs in Schedule A to the writ, he was quite difficult. He did not give me a direct answer to the pertinent question and after one or two attempts by me, he still did not answer it. Counsel attempted to explain that these two gentlemen were part of and were represented by their respective clans who have been listed in Schedule A to the writ. That is in no way an answer to the question put to counsel. Such conduct is unprofessional and uncalled for. It can be described as an attempt to avoid the truth and to mislead the Court. Counsel has a duty to not only assist the Court resolve the dispute but also present the true facts to enable the Court to arrive at a decision. Additionally, counsel has a duty not to mislead the Court as to the true facts of the case.
......
16. Let this be a reminder to counsel that while he has a duty to advance his clients’ (respondents’) case to get a favourable outcome, he also has a duty not to mislead the Court and must be courteous. As I said earlier, when a judge asks a question to counsel, it is not for no reason. Generally, it is to seek clarification on a point that may be unclear and needed elaboration or not covered by counsel and needed to be addressed. It may be a factual matter or a point of law. The input by counsel is not to be taken for granted. It will assist the judge to decide the case or as Gavara-Nanu J pointed out (supra) judges are conferred power to dispense justice and it is of vital importance that counsel appearing before them assist and guide them to administer justice ‘according to law’. I hope this reminder will help counsel improve on his ability to listen when the judge is speaking, comment when invited by the judge, be diligent, forthright and courteous when appearing in future.
28. Court file records will show that Mr. Abone failed to appear at various directions hearing in the matter. Trial dates had to be vacated because the defendants were not ready. Court records will also show that on the days leading up to the hearing, that Mr. Abone had not been attending Court despite knowledge of the return dates. On 6 February 2025, Mr. Aigilo was the only counsel that made appearances before the Court. The plaintiff, Mr. Olewale and Mr. Abone all failed to appear. I then issued directions that included an order directing Mr. Aigilo to inform the plaintiff, Mr. Olewale and Mr. Abone of the next return date which was scheduled for the 17th of February 2025.
29. On 17 February 2025, the plaintiff (in person), Mr. Olewale (for Mr. Abone) and Mr. Aigilo (for the third defendants) appeared in Court for directions hearing/status conference. Mr. Abone failed to appear on that day for the first defendant. The Court inquired and upon satisfying itself that Mr. Abone had been notified as per the Court’s earlier directions, the matter was set down for hearing at 9:30am on 3 April 2025. Mr. Olewale is the counsel on record for Mr. Abone who is the second defendant. He was present at that time and therefore would have briefed Mr. Abone of the hearing date as his counsel, or it is reasonable to make that assumption. But regardless, I also issued a direction for the plaintiff to immediately notify Mr. Abone in his capacity as the lawyer for the first defendant of the Court’s order listing the matter down for hearing on 3 April 2025.
30. At the date of hearing on 3 April 2025, both Mr. Olewale and Mr. Abone failed to appear in Court on time. As for Mr. Olewale, counsel did not appear at all at the trial to act for the second defendant. It seems that counsel had abandoned his client Mr. Abone completely. Of course, that would have been an internal matter between themselves to sort out. Upon satisfying myself that the plaintiff had complied with my directions issued on 17 February 2025, I allowed the trial to proceed. I would also refer to the transcript of proceeding of 17 February 2025 to confirm these.
31. I must say that I find Mr. Abone’s conduct, particularly as a senior lawyer, unacceptable and grossly incompetent, in terms of his duties as an officer of the Court and as a lawyer acting for the first defendant. One example of counsel’s unacceptable and grossly incompetent conduct was that at the end of the trial and before closing submissions, counsel appeared in Court very late and during the course of his submission, inquired whether the hearing was only in relation to the plaintiff’s claim and not the third defendants’ cross-claim. This demonstrates, in my view, the unpreparedness of counsel both as a lawyer and as a defendant to the proceeding. Even if he had been negligent in failing to appear in Court on many occasions, his lawyer Mr. Olewale represented him in Court at the time when the matter was set down for hearing. Counsel appeared not to have consulted his lawyer of what was happening at the directions hearings. He could have also conducted a search to find out. He did none of that but only turned up in Court late when the trial had concluded to ask such a question. With respect, I see a pattern that suggests disingenuity by counsel Mr. Abone.
32. I will come back to address this issue later below.
PRELIMINARY OVERVIEW
33. Premised on the evidence in general as presented by the parties, I make these preliminary observations:
34. Based on these observations, it appears that the first main issue would be to make a finding on the alleged inconsistent evidence of Peter Kumi Kui, and after that, determine its significance or impact that it may have on the evidence of the plaintiff and the third defendants.
ISSUES
35. The main issues, in my view, are, (i), which of the affidavits deposed to by Mr. Kui should be accepted as credible, (ii), regardless of the first issue, whether Mr. Kui is a credible witness and whether the Court should accept any of his evidence at all, (iii), whether the plaintiff and the third defendants/cross-claimants have established allegations of irregularities and torts of deceit (including fraudulent conducts) and fraud against the first and second defendants, (iv), whether the third defendants have successfully established their defence against the plaintiff’s claim, and (v) subject to the Court’s findings on the issues, what damages, orders or relief should be granted in favour of the plaintiff and the third defendants/cross-claimants?
CAUSE OF ACTION
36. The case law is settled in this jurisdiction with these types of actions where a party is seeking to set aside a consent order that is made by another National Court: Re Peter Naroi [1983] PNGLR 176, Paul Torato v. Sir Tei Abal [1987] PNGLR 403, Simon Mali v. The State (2002) SC690, Pius Nui v. Senior Sergeant Mas Tanda (2004) N2765, Hegele v. Kila (2019) N8119, and Karen Nugi v. Komap Mapulgei Business Group Inc. (2023) N10271.
37. In the case of Hegele v. Kila (supra) Kariko J explained at [18] to [22], which I adopt herein, as follows,
18. In hearing an application to set aside a consent order, the Court must not readily grant the application but must exercise caution; Paul Torato v Sir Tei Abel [1997] PNGLR 403, Joseph Kupo v Stephen Raphael (2004) SC 751.
19. The Supreme Court in Simon Mali v. The State (2002) SC690 held that the National Court has inherent powers to set aside a consent order under section 155 (4) Constitution in at least two situations:
20. The approach in England to setting aside a consent order is stated in Halsbury’s Laws of England4th Edition, Vol 3 [522]:
“[A] consent order or compromise may be set aside on a ground which would invalidate any other agreement between the parties including mistake, illegality, duress or misrepresentation”.
and later in Vol 26 [562]:
“A judgment given or an order made by consent may be set aside in a fresh action brought for the purpose on any ground which would invalidate a compromise not contained in a judgment or order. Compromises have been set aside on the ground that the agreement was illegal as against public policy, or was obtained by fraud or misrepresentation, or non-disclosure of a material fact where there was an obligation to disclose, or by duress, or was concluded under a mutual mistake of fact, ignorance of a material fact, or without authority” (My underlining)
21. That position is endorsed by Kandakasi J in Harry Tovon v Carl Malpo (2016) N6240 in his discussion of relevant case authorities including the Simon Mali case. At paragraph [36(a)], his Honour affirmed that a party affected by a consent order may apply to have the order set aside if it resulted from misrepresentation or fraud, as is the case with any other agreement.
22. In Papua New Guinea International Hotels Pty Ltd v The Registrar of Land Titles (2007) N3207, Davani J suggested that a non-party to a consent order that adversely affects that party (that is, its legal rights and interests), is entitled to apply for the orders to be set aside.
38. Cannings J in Pius Nui v. Senior Sergeant Mas Tanda (supra) stated, which I also adopt, as follows,
Though it was a consent order, it could have been appealed against if exceptional circumstances were shown. But the defendants have sat on the matter for well over a year. If they were serious about setting aside the order, they should have filed fresh proceedings and relied on the grounds of fraud or mistake. (Re Peter Naroi [1983] PNGLR 176, National Court, Andrew J; Paul Torato v Sir Tei Abal [1987] PNGLR 403, National Court, Bredmeyer J; Simon Mali v The State (2002) SC690, Supreme Court, Hinchliffe J, Sakora J, Batari J.) The defendants did not appeal against the order and did not file fresh proceedings to quash it. Their application to set it aside should therefore be viewed with extreme caution and refused.
39. And finally, in an earlier interlocutory ruling in this matter Karen Nugi v. Komap Mapulgei Business Group Inc. (supra), I adopt what I stated at para. 31 as follows:
31. The circumstances where a consent order may be set-aside by another National Court of Competent Jurisdiction include, (i), mistake, (ii), want of instruction, (iii), non-disclosure of relevant facts, (iv), fraud or fraudulent conduct, (v), misrepresentation, (vi), supervening events or significant change of circumstance, and (vii), undue influence. The list is not exhaustive. I would also add these 2 additional circumstances, (viii) breach of right to be heard of a non-party who would otherwise have been an essential party whose interest was or is directly affected by a term or terms of the consent order, and, (ix),where a party or a non-party having a direct interest in or who is directly affected by the consent order, establishes one or more irregularities in regard to the grant of the consent order by the court.
LAW
40. The laws on, (i), irregularity, (ii), the tort of deceit including fraudulent conduct and, (iii), the tort of fraud, are settled in this jurisdiction. I will address their elements with the aid of case authorities under each sub-heading.
(i) Irregularity
41. If a court order is proven or established as irregular or is found to be irregularly obtained, the court that makes the said finding or otherwise (i.e., that the earlier order was irregular) will normally be obliged set aside the said earlier order. The same may apply to a consent order. Manuhu AJ, as he then was, better explains that in Makop On v. Billy Parako (2003) N2593. His Honour stated, which I adopt herein, as follows,
In applications like this, the initial inquiry is whether the ex parte order was made regularly or not. Where an ex parte order has been made irregularly, the only just remedy is to rectify the irregularity by setting aside the ex parte order. Non-compliance with an important procedural requirement under the National Court Rules is usually considered as an irregularity, which generally results in an ex parte order being set aside. On the other hand, where an ex parte order has been made regularly or in compliance with relevant procedural requirements, setting it aside is dependent on what is just and fair in all the relevant circumstances; and, what is just and fair is dependent on the reasons for the non-appearance which permitted the matter to proceed ex parte; the merits of the applicant’s case; and, the promptness of the application to set aside ex parte order. [Underlining mine]
42. The above matter concerns setting aside an exparte order. However, the principle and consideration that a court should consider under the first leg (i.e., want of compliance with procedural requirement) are similar for application on matters such as this where the central issue concerns setting aside a consent order where the arguments or grounds include irregularity.
43. Bre AJ, as she then was, when approving Makon On in Foxie Kaeake and 1 Or v. Felix Kange and Ors (2023) N10567 also stated,
21. Basically, a finding of lack of procedural fairness will result in the order being irregular and subject to being set aside.
(ii) Torts – Deceit, including fraudulent Conduct, and Fraud
44. In regard to the torts of deceit (including fraudulent conduct) and fraud, I first refer to Cannings J’s decision in Magiten v. Moses (2006) N5008. His Honour stated at para. 15, which I adopt herein, as follows,
15. If the plaintiff were to rely on fraud as a discrete cause of action, he would need to have pleaded either the tort of deceit – and show that he acted to his detriment on the fraudulent (intentional, dishonest) misrepresentations of others – or an action under Section 150 (damages for deprivation of land) of the Land Registration Act – which can apply when a person is deprived of an estate or interest in land in consequence of fraud. Neither action can succeed against the fourth defendant, however. The tort of deceit is inapplicable as the element of acting on the misrepresentation of another person is absent. Section 150 is also inapplicable as it only gives rise to an action against the person who derived benefit by the fraud, not against someone in the position of the fourth defendant.
45. Shepherd J in Mangobe v. Estate of Mokola Kamiali (2022) N9582 stated, which I also adopt, at paras. 141 to 150 as follows:
Law on Fraud
Fraud is defined in the Shorter Oxford English Dictionary as “the using of false representations to obtain an unjust advantage or to injure the rights or interests of another.”[23]
The Macquarie Concise Dictionary defines fraud as meaning “deceit, trickery, sharp practice, or breach of confidence, by which it is sought to gain some unfair or dishonest advantage.”[24]
Fraud in civil law is based on the English common law action of deceit in tort: Derry v Peek (1888) LR 14 App Cas 337; Magill v Magill [2006] HCA 51.
In Welham v Director of Public Prosecutions [1960] AC 103 at p.133 Lord Denning said, with reference to the term “intent to defraud”, that “if anyone may be prejudiced in any way by the fraud, that is enough.”
The classic formulation of fraud for the purposes of actionable deceit is to be found in the judgment of Lord Herschell in Derry v Peek (supra) at p. 374:
“First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states.”
This statement of Lord Herschell has been cited and approved in numerous Papua New Guinea cases: see Post PNG Ltd v Hubert (2004) N2656; In re O’Dwyer (2007) N3226; Pololi v Wyborn (2013) N5253; Esso Highlands Ltd v Willie (2018) N7685.
In Maki v Pundia [1993] PNGLR 337 the plaintiffs alleged that the defendants’ certificate of title to a portion of land near Mount Hagen was obtained by fraud. The defendants countered that the pleadings were deficient and should be struck out because insufficient facts to establish fraud had been set out in the plaintiffs’ amended statement of claim. Woods J said this at pp. 338, 339:
“Courts have required that a person pleading fraud should set out the facts, matters, and circumstances relied on to show that the party charged had or was actuated by a fraudulent intention. The acts alleged to be fraudulent must be stated fully and precisely with full particulars. It is not enough just to say that the person lied or swore a false affidavit. The facts, matters and circumstances which make such statements lies must be particularised.
... The amended statement of claim clearly does not plead any facts, matters or circumstances. It merely asserts that the first defendant fraudulently obtained title, without giving any details ... it provides no facts to support that allegation.”
......
As a charge of fraud is a serious matter, the standard of proof required at trial is the preponderance of probability. However, where actionable fraud is alleged, a civil court will usually require a higher degree of probability than that which is required to establish proof in the tort of negligence. A civil court does not adopt so high a degree of proof as a criminal court, but it does require a degree of probability commensurate with the occasion: Bater v Bater [1951] P 35; Hornal v Neuberger Products Ltd [1957] 1 Q.B. 247; Blyth v Blyth [1966] A.C. 643 (HL).
In Alman v Bank of South Pacific Ltd (2010) N6639, Hartshorn J stated at para. 10:
“This standard of proof was considered by Sheehan J in Haiveta v. Wingti (No. 1) [1994 PNGLR 160, when he said:
“This standard of proof is the civil standard of proof on the balance of probability. Though not as onerous as the standard in criminal cases, the evidence must nevertheless be convincing commensurate with the seriousness of the matter in question. The evidence must therefore be real and substantial.”
46. I also refer to the case of Janet Roland Sios v. Philma Kelegai and Ors (2020) N8594. Hartshorn J therein addressed deceit, fraud and fraudulent conduct, where His Honour stated as follows:
9. For fraud to be proved, I refer to the classic statement of Lord Herschell in William Derry v. Sir Henry Peek [1889] UKHL 1; (1889) 14 A.C. 337 at 374:
“First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states.”
10. This statement has been reproduced and referred to with approval in Post PNG Ltd v. Hubert (2004) N2656 and In re O’Dwyer (2007) N3226.
11. In regard to the pleading of fraud, while noting Order 8 Rule 30 National Court Rules which requires amongst others, that particulars of any fraud be given, in William Maki v. Michael Pundia [1993] PNGLR 337 at 338, Woods J said:
“An allegation of fraud is a very serious allegation, and the courts have required strict adherence to requirements for pleadings in such cases. Courts have never allowed general allegations of fraud. Courts have required that a person pleading fraud should set out the facts, matters, and circumstances relied on to show that the party charged had or was actuated by a fraudulent intention. The acts alleged to be fraudulent must be stated fully and precisely with full particulars. It is not enough just to say that the person lied or swore a false affidavit. The facts, matters and circumstances which make such statements lies must be particularised.”
8. I also refer to the following passage from Open Bay Timber Ltd v. Lucas Dekana (2013) N5109 which was reproduced and approved by the Supreme Court in Nali Hole v. Allan Mana (2016) SC1536 at [22]:
“Allegations of actual fraud are better prosecuted by writ of summons and statement of claim. Indeed there is a strong argument to say that an allegation of actual fraud against a private individual or corporate body, even if it is to be agitated alongside conventional grounds of judicial review, must unless the leave of the Court is obtained to dispense with the requirements of the Rules be prosecuted by writ of summons. Order 4, Rule 2(1)(b) (where writ of summons required) of the National Court Rules states that "proceedings shall be commenced by writ of summons ... where a claim made by the plaintiff is based on fraud. Particulars of the alleged fraud would have to be pleaded under Order 8, Rule 30 (fraud etc).”
47. And finally, I also adopt what I had stated at para. 24 in the case Ling Seng Chuan v. Kenamu (2023) N10395, which was as follows:
24. Fraud in a civil or commercial sense usually takes either the form of making a false statement or the suppression or withholding of the truth, where there is a duty to disclose the truth. And there are three basic types of fraud: asset misappropriation, bribery and corruption, and financial statement fraud.
25. The essential elements of fraud in general, are
EVIDENCE OF PETER KUMI KUI
48. I begin by addressing the what appears to be an implied contest raised in regard to the 2 affidavits that were purportedly deposed to by Peter Kumi Kui. Let me remind myself at the outset that the first and second defendants failed to present their closing submissions. However, and as for the first defendant, it was able to adduce one evidence, that is, Exhibit D1(i).
49. Despite the lack of closing submissions by the first defendant, this evidence has been presented and is properly before the Court to consider.
50. The third defendants rely on Mr. Kui’s other affidavit which is marked as Exhibit D3(i). It is not disputed that Mr. Kui is illiterate. In both these affidavits, he purportedly had interpreters interpret the content of the affidavits to him before he purportedly signed them.
51. Having perused the 2 affidavits, Exhibit D3(i) was deposed by Mr. Kui to, amongst others, clarify and ask the Court to reject his former affidavit, that is, Exhibit D1(i) which is relied upon by the first defendant. In summary, Mr. Kui explains in Exhibit D3(i) that he could not recall ever signing his earlier affidavit marked as Exhibit D1(i); he accuses the first and second defendants of fraudulently preparing the affidavit without his knowledge and consent. He makes serious allegations against Mr. Abone, that is, to say that counsel had fraudulently prepared the affidavit and filed it without his consent or knowledge. Mr. Kui is essentially saying that Exhibit D1(i) is a fraudulent document which must be rejected by the Court. Mr. Abone and the first defendant did not adduce a scintilla of evidence to rebut the accusations of fraud that is labelled against them by Mr. Kui.
52. This is a case where Mr. Kui has not been called to be cross-examined on his evidence. His evidence therefore is uncontested.
53. This Court must now consider whether Mr. Kui’s explanation in his latter affidavit is credible and should be accepted. Again, no evidence or submissions have been made by the first and second defendants in regard to both affidavits.
54. I make the following observations as I consider to exercise of my discretion on whether I should accept the explanation provided by Mr. Kui in his affidavit which is marked as Exhibit D3(i):
“I have sighted an affidavit styled as “AFFIDAVIT IN SUPPORT & REPLY filed on the 03rd of May 2023, Document No. 16 in the Court file. My Lawyer Laken Lepau Aigilo had interpreted that affidavit to me and I am shocked that someone had impersonated me instruct Second Defendant to file same in this proceeding.
Therefore, I say that I deny deposing and signing that affidavit and I object to the use of that affidavit. The Court should therefore not include that affidavit as part of the evidences for First and Second Defendants at trial.”
55. When I weigh up these considerations, I am minded to accept Mr. Kui’s latter affidavit, which is Exhibit D3(i) to be credible. I accept the reasons that this witness gives to say why Exhibit D1(i) should be rejected. His reasons have not been challenged by the first defendant. I also find it very odd that Mr. Kui, who is the representative of the third defendants, would suddenly side with Mr. Abone, who is a defendant himself and who is also the lawyer for the first defendant, and give evidence in the manner as contained under Exhibit D1(i). For these reasons, and because the evidence has already been tendered and is before me for consideration, I will give no weight and value to the content of Exhibit D1(i).
56. Further, I also find that Exhibit D1(i) is a fraudulent document. I find that it was fraudulently procured and filed by Mr. Abone and the first defendant with the intention to commit Fraud Upon The Court in their hope that it will assist support their conducts and actions which are being challenged by the plaintiff and the third defendants herein.
CONSIDERATION ON THE ISSUE OF LIABILITY
57. Premised on the evidence and submissions of the plaintiff and the third defendants/cross-claimants, I will now consider the issue of liability.
58. Given my acceptance of the evidence of the third defendants to be credible, namely, Exhibit D3(i), I note that Mr. Kui’s evidence supports the assertions and allegations made by the plaintiff, which is that the PCO could not have been obtained by Mr. Abone and Mr. Lome with the consent or authority of Mr. Kui or the third defendants because Ms. Nugi had remained as their lawyers (i.e., lawyers of the third defendants) at the material time; that she did not cease to act for them nor did she file a notice ceasing to act for them. Mr. Kui confirms in his evidence that the plaintiff had been their lawyer at the material time when the PCO was endorsed by the Court. Mr. Kui’s evidence also corroborates the plaintiff’s evidence, and I make particular mention of Exhibit P2 where Ms. Nugi deposes that no notice of change of lawyers was filed by Mr. Lome to act for the third defendants at the material time before and after the PCO was prepared, executed and endorsed by the Court on 28 December 2022.
59. When I weigh Exhibit D3(i) with the other evidence of the plaintiff, especially Exhibit P1 and Exhibit P3 where Ms. Nugi also accused Mr. Kui and the third defendants of conspiring with the first and second defendants to defraud her, I find Mr. Kui’s evidence to be credible. I consider that Mr. Kui explains with clarity in response, which is that the first and second defendants had acted in concert without the knowledge or participation of the third defendants when they procured and endorsed the PCO in December of 2022. So, as far as the plaintiff making allegations of deceit and fraudulent conducts against the third defendants, I am minded to have them dismissed and I do so accordingly.
60. I will at this juncture address the allegations labelled against Mr. Lome. Although the allegations are very serious, I note that Mr. Lome is not named as a defendant in this proceeding. He has therefore not been given an opportunity to defend himself in this proceeding. Making any findings against him now would amount to breach to his right to natural justice under s.59 of the Constitution: Gabi v Nate [2006] PGNC 178, Ombudsman Commission of PNG v Denis Donohoe [1985] PNGLR 348; Okuk and State v Fallscheer [1980] PGSC 13, Hamaka v. Kombri (2022) N9916, and Marat v. Hanjung Power Ltd (2014) SC1357. For this reason, I dismiss all the allegations that are made against Mr. Lome or his firm in this proceeding.
(i) Irregularity
61. So, I now ask myself this question. Did the plaintiff and the third defendants establish that the procurement and endorsement of the PCO was irregular? My answer to this issue is, “yes, the procurement and endorsement of the PCO was irregular”. I make this finding based on the following factors that I have taken into account:
62. Premised on these reasonings, I am in a position to set-aside the PCO based on these irregularities.
63. However, the plaintiff and the third defendants also raised other matters that this Court cannot overlook, and I will address them now.
(ii) Torts of Deceit (including fraudulent Conducts) and Fraud.
64. The next question I ask myself is this. Did the first and second defendants commit deceit or fraud in the matter by their actions or inactions? My answer to this question is, “yes they have”. But I would add further that they have also committed Fraud Upon The Court which is more serious because it involved a lawyer who is an officer of the Court. I will address the latter separately below.
65. I have taken into account the following factors to find and hold the first and second defendants liable for deceit, fraudulent conducts and fraud:
66. In regard to Fraud Upon The Court, there is undisputed evidence adduced by the plaintiff and the third defendants that shows the following:
(i) concealed to the Court the fact that Ms. Nugi was the lawyer for the third defendants in WS 1273/12;
(ii) misled the Court to thinking that Mr. Lome was the lawyer that acted for the third defendants;
(iii) concealed from the Court the full terms and conditions as agreed between the parties during mediation including the mediation agreement and the Mediation Certificate;
(iv) drafted and presented the PCO which had been varied which contained false and inaccurate relief which were not consistent with what had been agreed to by the parties.
67. I am satisfied beyond and above the balance of probabilities that the first and second defendants are liable for the torts of deceit (including fraudulent conducts) and fraud against the plaintiff and the third defendants.
OTHER CONSIDERATION
68. Given my findings that the PCO was procured and endorsed by, amongst others, fraud, I wish to make observations to show the extent of the deceit and fraud that were committed by the first and second defendants. I begin as follows:
69. I turn my attention to the terms of the PCO as I have set out above in my judgment. When I consider the percentage break-up of the judgment sum that was awarded to the Mapulgei TRP beneficiaries in WS 1273/12, what it reveals which, with respect, is shocking, is as follows:
70. If we add up the tally, according to the PCO which has now been proven to have been obtained through deceit and fraud, the consultant which is the first defendant, its lawyer Mr. Abone and their creditors would have been entitled to receive 64% of the judgment sum of K19,298,262.63. And if we assume that each of the 3 individuals Kui Kumi, Paul Pik and Anis Peling were entitled to receive 19% each, then the total percentage would have stood at 102% which would have been beyond the judgment sum of K19,298,262.63 and the beneficiaries would have been left with nothing from the judgment sum and perhaps with additional debts to settle with the first and second defendants and their creditors.
71. The other significant fraud committed by the first and second defendants, is stated under term 7 of the PCO where it requires the balance of the judgment sum, which is K17,169,097.04 which is yet to be paid by the State, to be paid to the consultant’s lawyer Mr. Abone’s law firm Parkil Lawyers Trust Account, to be distributed according to the terms of the PCO. The said order was inserted into the PCO when the third defendants were not present together with their lawyer Ms. Nugi, at the time when the Court endorsed the PCO on 28 December 2022. Again, the third defendants are the beneficiaries of the Mapulgei TRP and they, together with their then lawyer Ms. Nugi, did not have any say in the procurement and endorsement of the PCO by the consultant Ruben Kin, his entity which is the first defendant and his lawyer Mr. Abone. As a result, the PCO was prepared in a manner that was false and which did not represent the interests of all the parties especially and I must emphasis, especially the interest of the third defendants.
72. The main takeaway for me or the substantive fraud committed by the consultant Ruben Kin and his entity, which is the first defendant, the consultant’s lawyer Mr. Abone and their creditors, are:
(i) procuring and filing a false document which is Exhibit D1(i);
(ii) awarding themselves a total of 64% to 102% of the judgment sum;
(iii) removing mediation orders that included an order that 5% of the judgment sum shall be paid to the third defendants’ lawyer Ms. Nugi for her legal fees; and
(iv) insert an order into the PCO that the balance of the judgment sum of K19,298,262.63 is to be paid to the consultant’s lawyer Mr. Abone when the third defendants had lawyers acting for them at the material time.
73. These, in my view, constitute gross irregularities, deceit and fraud committed by the first defendant and Mr. Abone, that is, for them and especially Mr. Abone as an officer of the Court, to see fit to prepare such an order, and to present that to a court of Law which is the National Court, and to ensure that the order was endorsed and made binding upon the parties.
RELIEF
(i) Plaintiff’s Claim
74. Let me re-state the relief the plaintiff is seeking,
75. I am minded to grant relief 18, 19, 20, 22 and 23.
76. For clarity and in regard to relief 20, there is overwhelming evidence adduced both by the plaintiff and the third defendants that the third defendants have approved the 5% payment of the plaintiff’s legal fees. The said percentage was also approved by the parties which was captured in the Mediation Certificate.
77. Because of the deceitful and fraudulent conducts of the first and second defendants as established herein, none of the awards made or orders that were granted in their favour by the PCO of 28 December 2022 shall survive.
78. The plaintiff also claims damages for stress and aguish to be awarded by the Court. I observe that although the relief is pleaded in the ASoC, there is no pleadings or particulars set out therein to seek this relief. I also refer to the evidence filed. I observe that Ms. Nugi briefly mentions at para. 12 of Exhibit P4 that she also claims stress as a relief. Ms. Nugi also briefly states at paras. 28 and 29 in Exhibit P1 that she suffered stress dealing with opposing landowners against how the benefits were to be distributed. She said when her percentage of what was agreed to be paid to her was omitted by the defendants, it caused her to suffer distress as well.
79. My powers on assessment is discretionary. In the present matter, the relief damages for stress and anguish is pleaded. It was, however, not particularized in the ASoC. That said, the plaintiff did address that in her evidence to say that she actually suffered distress. Case law is supportive of this type of situation where the pleadings lack particulars on a claim for a specific relief, but that evidence is adduced at trial to established the relief and where a nominal sum is or may be considered and awarded by the Court. David Wereh and Ors v. James Wamuk (2023) SC2487 and Central Bank of Papua New Guinea v Tugiau [2009] SC1013. This might come as a general observation but anyone who claims that dealing with landowners in Papua New Guinea is not a stressful exercise at all is probably ‘being nice’. From my personal experience as a lawyer and judge, I have observed that landowner issues of any kind are usually time consuming; they require more attention and better understanding due to various factors including customary law and practices, cultural differences and misconceptions, the latter mainly caused due to illiteracies or lack of dissemination of information on the matter to the landowners concerned. Also included are distrusts amongst the landowners themselves which would lead to divisions or appointment of new representatives to represent them; distrust include situations where those that are entrusted to represent the landowners may decide to take advantage of them or become rogue and corrupt. I observe that landowner issues in PNG in general would normally require patients to resolve.
80. Ms. Nugi gave evidence that established and supported the relief. Her evidence was not challenged by the first and second defendants. Under the circumstances, I am minded to make an award for stress and anguish in favour of the plaintiff. I also take into account my findings in regard to the acts of irregularities, deceit, fraudulent conducts and fraud that were committed upon her by the first and second defendants, as reasons enough to find that Ms. Nugi did suffer the damage, and that it would be unjust for this Court not to have regard to the said relief at all.
81. I am minded to consider, as a starting point, a nominal award or damages for stress and anguish. The approach is on par with the Supreme Court’ decision in David Wereh and Ors v. James Wamuk (supra). The Supreme Court stated at para. 34 and I quote,
34. In relation to a claim for stress and anxiety not otherwise demonstrated by evidence the authorities indicate that an amount of nominal damages for stress and anxiety is in the region of K5,000.00: see for example Walup v National Housing Corporation [2019] N8065 (K5,000.00) and Madring v Santi Forestry (PNG) Ltd [2015] N5908 (K4,000.00). The appellants submitted that the primary Judge should have made no award for stress and anxiety at all, or should have made an award of nominal damages of less than K5,000.00. In our view the amount of K5,000.00 for stress and anxiety is appropriate in the present case.
82. Given the gravity of the matter, I am minded to consider a higher award of K20,000 as damages for distress and anguish that have been suffered by the plaintiff. The plaintiff’s suffering may be termed as nominal, but should, in my view, also be measured considering or taking into account the uncontested evidence of what she had gone through due to the fraudulent actions and inactions of the first and second defendants. From the time the plaintiff discovered that she had been defrauded of her fees which was in January of 2023, she was also mourning the loss of her brother back in her village. When I weigh these, I believe the sum of K20,000 would be a reasonable sum to make. I will make an award of general damages for stress and anguish in the sum of K20,000 against each of the defendants, that is, K20,000 against the first defendant and K20,000 against the second defendant. In total, the plaintiff is entitled to general damages in the total sum of K40,000 against the first and second defendants jointly as well as severally.
83. The plaintiff seeks a fixed order for cost in the sum of K100,000. She claims that the sum has been agreed to by the first defendant. She deposes evidence in that regard which is Exhibit P4. I observe that the evidence refers to what the consultant Ruben Kin had stated in his earlier affidavit which is not adduced before this Court. Ms. Nugi also relies on the evidence of a consultant named Jacob Kop Tiptip. This witness filed an affidavit which was adduced as Exhibit P5. The same affidavit was adduced by the third defendants as Exhibit D3(vi). Evidence adduced suggest to me that the cost may be appropriately considered or categorized as a special damage which has not been pleaded.
84. Having considered these evidence, I, however, decline to make an order for cost in the manner as submitted by the plaintiff.
85. Instead, I will order cost to follow the event on a party/party basis to be taxed if not agreed. I find this approach to be reasonable under the circumstance of the case.
(ii) Cross-Claim
86. In the C/Claim, the third defendants/cross-claimants seek the following relief against the first and second defendants,
(a) Pursuant to Section 155(4) of the Constitution, and inherent powers of this Court, the Consent Orders of 28th December 2022 be set aside.
(b) Pursuant to Section 155(4) of the Constitution, and inherent powers of this Court, the First and Second Cross-Defendants be ordered to reimburse to the beneficiaries K1,157,731.62 obtained from the National Court Trust Account by employing the fraudulent Consent Orders of 28th December 2022.
(c) The parties be ordered to mediate the matter in front of all the beneficiaries to resolve the issue of distribution among the beneficiaries.
(d) Pursuant to Section 155(4) of the Constitution, and inherent powers of this Court, the Finance Department pay the 70% of the total remaining Judgment Debt to Laken Lepatu Aigilo Lawyers from the monies remaining and payable to Mupulgei TRP beneficiaries in the case of “Kunai v Papua New Guinea Forest Authority [2018] N7570, which shall be equally distributed to the Mapulgei TRP Judgment Beneficiaries and their Creditors.
(e) Pursuant to Section 155(4) of the Constitution, and inherent powers of this Court, the agreed certified 5% legal fees of K964,913.13 be paid by the Finance Department to Pang Legal Services from the monies remaining and payable to Mapulgei TRP beneficiaries in the case of “Kunai v Papua New Guinea Forest Authority [2018] N7570.
(f) In the alternative, the total remaining Judgment Debt of K17,695,097.04 be paid by Finance Department to the Nationale Court Trust Account which shall be distributed by the beneficiaries once issues of distribution among the beneficiaries are resolved through a consent order agreed by all parties.
(g) The Second Cross-Defendant be referred to the Papua New Guinea Law Society to be dealt with for professional misconduct on the basis of allegations pleaded herein and further, both First and Second Cross-Defendants be referred to PNG Police Fraud Squad to be dealt with for committing relevant criminal offenses stems from the allegations pleaded herein.
(h) Costs of the Proceeding;
(i) 3% interest per annum per statute; and
(j) Any other orders as the Court deems fit.
87. I grant relief (a), (c), (e) and (h). These relief are similar like those sought by the plaintiff which I have granted above.
88. I am also minded, given the circumstances of the matter especially considering the serious findings of deceit and fraud by the Court against the first and second defendants, to grant relief (b). I will deduct K70,000 from the claimed refund. Mr. Kui deposes at para. 15 of Exhibit D3(i) that Mr. Abone had deposited into his personal account K70,000 after the signing and endorsement of the PCO. The final sum I will order the first and second defendants to jointly and severally pay back into the National Court Trust Account is K1,087,731.62.
89. Evidence adduced by the plaintiff and the third defendants show that Mr. Abone has not provided any acquittals, after the released K1,157,731.62 (that was paid from the National Court Trust Account directly into his trust account), to the Maplugei TRP beneficiaries or landowners. This payment was made possible under the now determined fraudulent PCO of 28 December 2022.
90. I will also issue consequential orders in that regard.
91. I am disinclined to grant relief (d). That said, I will grant relief (f) which is sought in the alternative. I choose this as the reasonable way forward. This is in no way to question Mr. Aigilo’s firm’s ability or trust in acting for the third defendants. I believe that the funds should be secured at a neutral ground and disbursed premised on agreements that may be reached by the parties.
92. And finally, I am minded to grant relief (g). I will refer Mr. Abone to the Papua New Guinea Law Society (Law Society) and recommend that he be referral to the Lawyer’s Statutory Committee for prosecution: Hon. James Marape v. Peter O’Neil and Ors (2016) SC 1492, Rimbink Pato v. Reuben Kaiulo & Ors (2003) N2455, Spirit Haus Limited v. Robert Marshall (2004) N2630, John Bedford Bray v. Susan Kupa Derks (2008) N3483, Madang Development Corporation Limited v. Radtrad Madang Limited (2013) N5259 and Simon Ketan v. PNG Law Society (2002) N2290. I make the decision premised on my findings of civil fraud against Mr. Abone. My findings have extended to finding Mr. Abone liable for Fraud Upon the Court. Evidence adduced shows that Mr. Abone may have violated his ethics as a lawyer and as an officer of both the National and Supreme Courts of Papua New Guinea at the material time when he procured and endorsed the PCO.
93. Premised on the serious findings by the Court, I will also exercise my inherent jurisdiction under s.155(4) as requested, and in so doing, issue additional orders that may or may not be consequential in nature. Avia Aihi v. The State [1981] PNGLR 81, John Mua Nilkare [1998] PNGLR 472, (SC536), Inovest Ltd v. Pruaitch (2014) N5949, Porgera Gold Mines Ltd v. Kimaleya Ondalane and Ors (2023) N10274, William Lakain v. Senior Sergeant Andrew Wilfred and Ors (2023) N10270, Gadigi v Logae (2021) SC2102, Michael Newall Wilson v Clement Kuburam (2016) SC1489, Jennifer Gawi v. Anna Gawi and Ors (2024) N10860, and Application by Anderson Agiru (2002) SC686.
94. Kearney DCJ in Aihi v The State (Supra) stated,
"As the ultimate court in the National Judicial System, this court is invested with the judicial authority of the people; s 158(1). That is the exclusive and ultimate source of its authority. The word "inherent" in s 155(4), as also used in s 155(2)(b), (3) and (5) indicates that it is from that unlimited well that the courts authority under that provision is derived; it is not a reference to a power possessed by the court simply because it is a court. The word "inherent" also connotes that within the limits of the subject matter of s 155(4), the power of the Court is plenary — (ie full, entire, completed). In the absence of express constitutional provisions, that power and its exercise cannot be restricted by any Act of Parliament ..."
95. In exercising my inherent power under s.155(4) of the Constitution upon my own initiative, which is premised in the interest of justice, I will issue the following additional orders:
96. The circumstances of the case, in my view, requires me to make these additional or consequential orders to enforce justice and also protect the interests of the vulnerable which are the beneficiaries who will be receiving the monies that was awarded to them by the National Court in Francis Kunai and Ors v. Papua New guinea Forest Authority and Ors (supra) or WS 1273/12. The orders are also aimed to be fair as well as provide leverage, to the first and second defendants, that is, they allow them the opportunity to itemized their costs. They also provide avenues to them to recover their costs whether it be through taxation or court proceedings.
97. There is no premise for seeking relief (i) in the C/Claim which is therefore dismissed.
SUMMARY
98. In summary, I grant the plaintiff’s claim against the first and second defendants. I dismiss the plaintiff’s claim against the third defendants. I also grant the third defendant/cross-claimants’ cross-claim against the first and second defendants. The first and second defendants are held liable jointly and severally as qualified by the final orders of the Court.
COST
99. An order for cost is discretionary. I will order the first and second defendants to pay the costs of the proceedings of the plaintiff and the third defendants, on a party/party basis to be taxed if not agreed.
ORDERS OF THE COURT
100. I make the following orders:
The Court orders accordingly
________________________________________________________________
Lawyers for the plaintiff: Plaintiff In person
Lawyers for the first defendant: Parkil Lawyers
Lawyers for the second defendant: Universal Law
Lawyers for the third defendants: Laken Lepatu Aigilo Lawyers
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URL: http://www.paclii.org/pg/cases/PGNC/2025/305.html