N11623
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 181 OF 2023 (IECMS)(CC1)

BETWEEN:
CAMILLUS MONOU, ALLAN SIFWA, MOSES WIRO, JIMMY NAWILO & JOSPEH AISO ON THEIR BEHALF AS CLAN LEADERS AND AS REPRESENTATIVES OF LANDOWNERS OF THE MOMA, WANAM, LAWO & NAGU TRIBES OF AMANAB, VANIMO-GREEN DISTRICT, WEST SEPIK PROVINCE
Plaintiffs

AND:
PAPUA NEW GUINEA FOREST AUTHORITY 
First Defendant

AND:
AMANAB 56 TIMBER INVESTMENTS LIMITED 
Second Defendant

AND:
MINISTER FOR FORESTS 
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

WAIGANI: COATES J
6 - 9 OCTOBER, 4 DECEMBER 2025

LITIGATION – Timber agreements – Claim of some forged signatures on Forest Management Agreement – Claim that such is enough to nullify the whole of the agreement – Claim of fraud – Evidence as a whole to be taken into account.

EVIDENCE – Claim that one or more defendants engaged in unethical practice - Approach to witnesses – Affidavits opposed to their first affidavits obtained - Lawyer for plaintiffs interpreted the adversarial evidence for the plaintiffs – No evidence of such being independent. 

ALLEGATIONS AGAINST LAWYER - Claim that Forest Authority lawyer engaged in unethical and criminal practice – Lawyer for plaintiff engages in photographic identification of the alleged ‘culprit’ – No independent procedure undertaken – Submissions made on inadmissible evidence of alleged wrongdoing naming alleged ‘culprit’ - Fact finder entitled to place little weight on procedures undertaken with no safeguards - Dismissal of case.

Cases cited
Derry v Peek H.L.(E) 1889
Pinpar Developer Pty Ltd v TL Timber Development Pty Ltd [2006] N3075.
RD Tuna Caners Ltd v Sengi & Ors [2022] SC2232 

Counsel
C Mcgrath & E Wohuinangu for the plaintiffs
J Waka for the first defendant
C Copland & E Lili for the second defendant
E Wungin for the third and fourth defendant

DECISION

1.	BY THE COURT: Logging has been carried out in the Amanab area of West Sepik Province since 2008. Many millions of Kina have been earned and monies paid to customary landowners under a logging agreement. 

2.	This case, claiming fraud among other civil wrongs, is brought against the loggers, the PNG Forest Authority, the Forest Minister and the State. 

3.	The five named plaintiffs who say they represent clans of four tribes in the logging area are customary landowners, and seek to set aside the original forestry agreement, with injunctions to prevent further logging, and payment of millions of Kina in compensation by way of general damages, special damages, punitive and exemplary damages, and interest.

4.	In reality, the plaintiffs represented that they speak for all landowners because it would otherwise prejudice any landowner who was not in agreement with the possibility of overturning the logging agreement. 

5.	The area subject to the logging agreement is known as Amanab Block 5 and 6, but I will merely refer to it as the logging area. 

6.	The plaintiffs claim that fraud has been used to obtain the logging agreement. 

7.	The plaintiffs rely on actual fraud, constructive fraud and lack of consent to the logging, misfeasance in public office, breach of duty, breach of constitutional right to life, breach of constitutional right to protection of the law, breach of constitutional right from unjust deprivation of property, breach of constitutional right to freedom of traditional religious beliefs and customs, trespass, nuisance, interference with customary rights to water and riparian rights, breach of agreement to pay money (royalties) and to provide other benefits to customary land owners.

8.	If there is a finding that others apart from identified customary landowners are recognized within the evidence, the plaintiffs seek an order in the nature of a cy-pres award to “…the extent that any compensation or damages is awarded for loss or damage suffered by the plaintiffs and the customary land owners they represent cannot be attributed or apportioned to the customary land of any particular clan or customary land owner, such compensation or damages is to be held on trust by the plaintiffs or their assigns to be administered for the benefit of that class or otherwise ordered by the court, including but not limited to the following purposes”, being restoration and rehabilitation of the environment including waterways and adjacent areas, construction and maintenance of community facilities and infrastructure including housing, schools, medical facilities, drinking water infrastructure, telecommunications infrastructure and education scholarships to study in Port Moresby and elsewhere. How such would be set up was not made clear, although if there was such a finding, no doubt submissions could be taken at a later date.

9.	The plaintiff claims the first and second defendants are liable and the Minister and the State, being the third and fourth defendants, are vicariously liable. The defendants, collectively and individually, seek to have the claim against each of them dismissed.

10.	The first defendant, the Forest Authority, alleges that the Forestry Management Agreement (the FMA) in question, with or without the plaintiffs’ consent, is consistent with the acquisition of timber rights under the Forestry Act 1991.

11.	The second defendant, the logging company, pleads that no laws have been breached and that the FMA required the parties to go to arbitration first to resolve any dispute.

12.	The third and fourth defendants say they should not be parties to this action. 

13.	Conceded by the plaintiffs at the beginning of the trial was that proving civil fraud had a very high threshold and such could not be proven here as actual fraud, but constructive fraud would still be relied on.  

14.	That submission was amended after the evidence was taken to claim that actual fraud could be proven against an officer of the PNG Forest Authority, their chief legal officer, Mr Tobias Dalid, in relation to affidavits said to have been produced by fraud, such submissions complicating the case being run. 

15.	It was accepted by all parties that the plaintiffs had taken payments through the logging agreements. No figures or particulars as to payments were given by the plaintiffs.

THE LAW IN RELATION TO FRAUD 

16.	It is timely to remind the parties as to what fraud is.

17.	This is civil fraud, not fraud as understood in the criminal sense.

18.	Having said that, fraud in the civil sense can result in criminal charges.

19.	Criminal fraud is established under criminal law legislation and is prosecuted by state authorities with criminal penalties applied, obviously including the ultimate penalty of imprisonment.

20.	Civil fraud is a dispute between parties with penalties such as damages or compensation.

21.	As was stated in Mozley & Whiteley’s Law Dictionary (11th Ed 1993): 

“Fraud. The modes of fraud are infinite, and it has been said that the courts have never laid down what constitutes fraud, or any general rule, beyond which they will not go in giving equitable relief on the ground of fraud. Fraud is, however, usually divided into two large classes (i) actual fraud and (ii) constructive fraud.

An actual fraud may be defined as something said, done or omitted by a person with the design of perpetrating what he must have known to be a positive fraud.

Constructive frauds are acts, statements or omissions which operate as virtual frauds on individuals which, if generally permitted, would be prejudicial to the public welfare, and yet may have been unconnected with any selfish or evil designs; eg bonds and agreements entered into as a reward for using influence over another, to induce him to make a will for the benefit of the obliger. For such contracts encourage a spirit or artifice and scheming and tend to deceive and injure others.’… ‘To amount to fraud, conduct must be deliberately dishonest’ (see R v Sinclair [1968] 3 All ER 241’ ”.

22.	The word constructive is also given meaning: “Constructive. An adjective nearly synonymous with ‘implied’; meaning that the act or thing to which it refers does not exist, though it is convenient, for certain legal purposes, to assume that it does.”

23.	The very old precedent of Derry v Peek H.L.(E) 1889, still relied on in fraud cases and in this case, and applicable to both actual and constructive fraud, states identifiable elements where the alleged act or omission causing the damage contains: false representations, which have been made knowingly, or without belief in their truth, or recklessly, without caring whether they are true or false. The court there ensured a brake was applied to such a test, being that a false statement made through carelessness and without reasonable ground for believing it to be true, may be evidence of a fraud but does not necessarily amount to a fraud, because if made with an honest belief that it was true, such is not fraudulent so cannot make the person making the statement liable to an action for fraud.

24.	The test, therefore, is not necessarily an easy test to apply, however, it is not impossible.

25.	At this stage there is no need to outline definitions of other allegations -  misfeasance in public office, breach of duty in identifying the correct landowners, trespass, conversion, nuisance, interference with customary rights to water and riparian rights, breach of constitutional rights to life, protection of law, protection of unjust deprivation of property and freedom of traditional religious beliefs and customs and alternatively, breach of agreement to pay money and provide other benefits to customary landowners. 

26.	The primary document in contention is a Forest Management Agreement, the FMA, for the Development of Amanab Blocks 5 and 6 FMA Forest Resource, which can be dated by the signature and approval of the Forestry Minister on 3 December 2003 and approved by the Minister a few days later.

ISSUES

27.	The issues to be resolved are:

a)	Whether there has been fraud or constructive fraud attributable to the defendants, acting alone or in company;
b)	Whether there was a time limitation to bring this proceeding pursuant to s.16 of the Frauds and Limitation Act - which I will observe is a legal question and not a factual question;
c)	Whether the State can be held vicariously liable for alleged omissions of forestry officers, employees, the board of the PNG Forestry Authority or the logging company;
d)	Whether the Minister of Police may be involved because of alleged actions of police officers (which would be simply part of the particulars of any alleged civil wrong), and
e)	Whether the matter is properly a class action pursuant to Order 5 Rule 13 of the National Court Rules.

LEGISLATIVE CONTEXT

28.	There is a legislative framework to be taken into account.

29.	By statute, the Forestry Act 1991 (the Forestry Act) gives effect to the National Goals and Directive Principles of the Constitution including to manage, develop and protect PNG's forest resources and environment in such a way as to conserve and renew them as an asset. I will state that this case was not run as a direct environmental case, allegations of land degradation under the Constitution being relied on as a secondary case and such allegations being particulars and evidence of breach of agreement as to restoration of the logged land.

30.	The Forestry Act establishes the Papua New Guinea Forestry Authority (the Forest Authority), to manage the resource on behalf of the State, such management including the ability to contract with customary landowners.

31.	The Forestry Act provides recognition and protection of customary landowners who shall be recognised and respected in relevant transactions – see section 46.

32.	The cases have reflected that the Authority has a duty to ensure this – see Pinpar Developer Pty Ltd v TL Timber Development Pty Ltd [2006] PGNC 66; N3075.

33.	The Forestry Act sets out procedures to develop forests, and Forest Management Agreements may be approved by the Forest Minister whereby customary landowners transfer their timber rights to the Forest Authority. Timber rights are defined to mean: “…the rights to fell, cut, remove and dispose of growing or dead trees, whether standing or fallen, and any part of such trees, and any other vegetable growth, and the right to plant, grow and manage trees and to carry out regeneration and re afforestation work, and in a National Forest includes the right to remove gravel and other road making materials.”

34.	When an FMA is approved by the Minister under s.56 of the Forestry Act, the Forest Authority may establish a forest development project with the Minister's approval and authorise a forest industry participant to engage in forest industry activities including harvesting.

35.	In the plaintiffs’ case, sections 56 and 57 of the Forestry Act are the core provisions relevant to the dispute.

36.	Section 56 allows the Forestry Authority to acquire timber rights from customary owners pursuant to an FMA.

37.	Section 57 deals with obtaining consent and imposes a duty that where it is proposed to enter an FMA over customary land, the title of the customary owners shall be vested in a land group or land groups incorporated under the Land Incorporation Act 1974 are registered under a law providing for the registration of title customary land. However where it is impractical to give effect to that, a Forest Management Agreement may be executed on behalf of customary groups over their land, provided that such agents are authorised to act in the manner consistent with the custom of the group, and that 75 percent of the adult members resident on the land of each group shall give written consent.

THE CHALLENGE

38.	These are issues challenged by the plaintiffs, and in claiming fraud, such fraud goes to two circumstances.

39.	The first alleged circumstance is that there are four forged signatures on the FMA allowing the logging on the land.

40.	The second alleged circumstance is that the Forest Authority represented and continues to represent falsely, or with reckless indifference to the truth, that it had lawfully acquired timber rights from ALL customary landowners in Amanab Blocks 5 and 6.

41.	Evidentially, the plaintiff’s case as to fraud relied on various factors challenging these provisions, but since evidence was given, a submission was made that the Court may not accept any evidence the Authority’s officers gave, as an allegation of criminal fraud arose on that evidence against the Authority’s legal adviser.

SIGNATURE EVIDENCE

42.	I will deal with the signatures first.

43.	Four people, Camillus Monou, Dickson Waiemi, Julius Mias and Tony Monkwai, claim their signatures were forged on the FMA document.

44.	I will refer only to Mr Monou as lead plaintiff, as the others do not add to his evidence, although I am not dismissing their evidence.

45.	As lead plaintiff, Mr Camillus Monou, aged 62, gave evidence of the history of the taking of timber in the areas in contention, those areas known as Amanab blocks 5 and 6, blocks known as the Forest Management Area (FMA).

46.	The purpose of the evidence was to show that the FMA did not comply with identification of customary agreements (s.57 of the Forestry Act) and that he did not sign the FMA and to show that the FMA did not comply with the requirements of the Forestry Act.

47.	He said the area was surveyed around 1993 by the first defendant.

48.	Four tribes which were named occupy the area, one of which, Wanam, Mr Monou belongs to. The plaintiffs’ claim that all four tribes are represented in this proceeding.

49.	Mr Monou said traditionally, his patrilineal society allow the men to make decisions, and consent to use resources is given by agreement through the tribal leader.

50.	He said that, importantly, in 1999, his clan joined several clans to register an Incorporated Land Group, an ILG, under the Land Group Incorporations Act 1974, for “development around customary land”. The registered name of the ILG was the WASS Land Group, representing four clans being the Wankam, Auten, Seioso and Keiso clans, including the Kaur and Yanim clans. I will point out that such means for development on customary land, no power to develop non-customary land (hence part of the reasoning for the cy-pres claim stated above). He said not everyone agreed, however, the LLG existed. He said no maps were made of the customary land. In about 2003, as Deputy Chair of the Moma Resources Development Ltd, with the then chair Marcus Wini, and application was made and granted of a Timber Authority under the Act to log in area from Sumumini village to Fugumui village, which became Amanab Block 5.

51.	This timber authority was sold to Vanimo Forest Products Limited in about April 2004 causing a rift between the clans supporting the Moma Resources Development Ltd.

52.	Mr Belden Numah, the current Parliamentary member for Vanimo-Green River Open Electorate, but not then a member of Parliament, contacted him and proposed that Amanab landowners give him a power of attorney to negotiate with the government and logging companies to come onto their land. He said some landowners did not agree, but he went with Mr Bob Namah (brother of Mr Belden Namah) in a vehicle and started drinking alcohol in the car before signing the power of attorney for Mr Belden Namah to negotiate on their behalf.

53.	He said that he was drinking but was aware of what he was signing.  

54.	I find as a fact this evidence was given in such way to suggest that the powers of attorney were given on dates unknown in 2004, because Mr Monou and others were flown to Port Moresby in 2004.

55.	Mr Monou in fact stayed in Port Moresby until 2006 in negotiations over logging the relevant Amanab area.

56.	That he stayed so long was stated to indicate that he had intimate knowledge of lead-up negotiations, which, by 2006, he had become unhappy with and left the negotiations.

57.	However, he ran the case that he was not party to the FMA, which was signed by the Minister in 2003, and lacking cogent counter evidence, I find that is when it was signed, yet he only became aware of his forged signature on the document in 2010, as he stated at paragraphs 69 and 74 of his affidavit.

58.	In a poor performance of running a trial, the defendants’ lawyers did not effectively cross-examine on what appear to be inconsistencies in this evidence, and particularly as to when the plaintiffs began taking payments from the logging company and under what agreement such were being given and accepted. 

59.	In any case, the issue of the matter being out of time was fairly raised on Mr Monou’s statement that he became aware of the agreement in 2010, yet took no action until around April 2023, time limits under the statute of fraud well expired (being a six-year period). I will return to this issue.

60.	Mr Monou’s evidence was given so as to perhaps lead to a conclusion that his signature was copied from the power of attorney he had given to Mr Namah – without actually making the claim that he believed Mr Namah forged the document, although it was left open to make such finding.

61.	I find it strange that Mr Monou knows when he signed the power of attorney, 10 November 2004, and produced no copy of it, stating he did not know where it was. He did not state how he remembered that date of signing it such occurring years ago.

62.	No such finding can be made against Mr Namah on such evidence and as Mr Namah was not called.

63.	Perhaps the reason for that is that Mr Monou gave no evidence of ever withdrawing his handing of a power of attorney to Mr Namah to conduct and sign timber agreements, because he stated that his signature could have been copied, and may have been expecting to be asked whether his memory of the date of giving the power was mistaken. 

64.	Immediately apparent is that the FMA was signed on 10 December 2003 and Mr Monou’s clear statement is that he gave the power of attorney on 10 November 2004.

65.	Other than an issue of credit regarding Mr Monou’s memory, nothing further arises on the alleged power of attorney.

66.	The issues to be determined then to this point are the alleged forged signatures, and why no action was taken, at least by Mr Monou, after learning of the agreement in 2010, against the background that monies were being paid and taken.

67.	It is relevant to note that apart from the four claimed forgeries, the other signatories to the FMA, representing 15 land groups, were not called so no consideration of other possible forgeries could be undertaken, yet the plaintiffs claimed to know that they were representing the majority of landowners.

68.	The lawyer for the plaintiffs, Ms Evelyn Wohuinangu, gave oral evidence on this point.

69.	She was asked why she did not join the ILG’s, and said she understood they had been deregistered, however, she also said she received instructions from the clans so she went ahead with them as parties.

70.	I do not understand how instructions like that serve – the need to obtain evidence of those present at the time the agreement was signed being important to proving circumstances in which all signatories were given and confirming that not all parties who could take part in this proceeding are present. On that last point, simply stating that the plaintiffs now represent all clans is not enough, as difficult as it is to represent a class of people.

71.	The authorisations for representation the plaintiffs gathered do not state that those who merely stated ‘they represent me’ were aware of what is being sought here. The authorities were gathered in 2018, and then there was a five-year delay before proceedings were launched in 2023. Ms Wohuinangu admitted that it was impossible for her to get all the authorities.

72.	It seems to me that by not having the original signatories before the court, or some evidence about them, the plaintiffs have denied themselves the opportunity of putting all evidence before the court in relation to alleged forgeries. I have no idea if the other signatories would claim/make the same allegation.

73.	But more importantly, the plaintiffs have denied themselves the opportunity of proving they have all of the residents on the logging land, by majority, supporting their case.

74.	I am really surprised that none of the other signatories have not been called to give evidence of the circumstances they observed when the agreement was signed, but that is the state of the evidence.

75.	So what is left of the evidence?

76.	The evidence then, the only cogent and admissible evidence, is that Mr Monou says his signature is forged, as do three others.

77.	There is no explanation from him as to why he did not take action when he learnt of the forged signature in 2010.

78.	There is a reason for that.

79.	All witnesses said they had taken monies from the company.

80.	It cannot be the case that once a fraud is discovered it is allowed to continue until there is dissatisfaction with the monies being paid under the alleged forged signature, then claim there is a continuing fraud.

81.	That is being opportunistic.

82.	Which brings me back to the alleged signatures.

83.	So the highest this evidence could result in, for each of the four claiming that their signatures were forged, is a finding that they say their signatures were forged.

84.	But there is more to consider, when the plaintiffs’ evidence is properly examined, that their lawyer, Ms Wohuinangu, also became interpreter for them as the evidence was gathered, which in the circumstances here weakens remarkably the weight that can be put on their evidence.

85.	Ms Wohuinangu took the original statements in Tok Pisin and interpreted them to put them in English for the affidavits.

86.	While there are circumstances where such would not be questioned, in this case, an issue of law has arisen, and although not identified by the defendants, one I cannot ignore, because it involves my decision-making.

87.	Witnesses for the plaintiffs, Allan Sifwa, Tony Monkwai and John Tai gave affidavits for both plaintiffs and defendants.

88.	Ms Wohuinangu had first prepared their evidence, which was in support of the plaintiffs, Mr Sifwa, being a plaintiff, and filed their affidavits.

89.	Then affidavits were prepared and signed by them supporting the case of the defendants, particularly the logging company and Forest Authority. Someone has caused these affidavits to be created. 

90.	On learning of this, Ms Wohuinangu prepared further affidavits for them, each in effect stating they did not know what they were signing with the affidavits supportive of the defendants.

91.	It is rare, but it does happen that the situation arises where a witness gives such conflicting evidence. There is no property in a witness, but the gathering of evidence should never go to taking such from a party for the other side without permission of the party or their legal adviser.

92.	Where this has relevance to this case is that Ms Wohuinangu took it upon herself to obtain the third affidavit from these witnesses, instead of just leaving the two conflicting affidavits for the court to hear the evidence and make a decision as to which would be accepted as being properly made.

93.	Even having the three from each witness could be considered, but for the fact that Ms Wohuinangu also interpreted for the witnesses.

94.	She interpreted for all the witnesses other than an aerial mapping specialist and this fundamentally changed the nature of the case.

95.	In the circumstances here, the role of the interpreter has now been left open to question what was interpreted when Ms Wohuinangu prepared the witness’s second affidavit in support of the plaintiffs’ case.

96.	The role is questionable because allegations arose that the witnesses had been misled. This then became an adversarial case within a case, and relevant to the proceeding as a whole.

97.	What was required was an independent interpreter, to assist the lawyer constructing the affidavits.

98.	This very sensitive situation needed to be done at arm’s length – and that is why the usual course would be to just leave two opposing affidavits for the court to determine their validity.

99.	Ms Wohuinangu now cannot escape the position she has put herself in – that she represents the plaintiffs’ case, but involved herself in interpreting what she said were her instructions about them being misled. In doing so, she appears to have become invested in the outcome of the litigation for them. She should not have done the interpretation of adversarial questions as to the compilation of opposing affidavit material, as interpretation must be seen to be independent on such questions. 

100.	And then the circumstances for the plaintiffs got worse.

101.	Accepting the plaintiffs’ counsel’s original submission made at the start of the trial that the proving of actual fraud was abandoned, that changed in relation to the position of the Forestry Authority’s principal legal officer, Mr Tobias Dalid.

102.	In preparing the third affidavits for these witnesses, Ms Wohuinangu also conducted an associated investigation as to who prepared and had them sign the affidavits on behalf of the defendants.

103.	At some stage she concluded it was Mr Dalid, and following that line, gave evidence of showing Mr Dalid’s photograph, downloaded from the internet to the witnesses who then purportedly identified him.

104.	Mr Dalid did not give evidence. He was not called, either by the defendants or forced by the plaintiffs.

105.	The affidavit of Ms Evelyn Wohuinangu, who is the plaintiff’s counsel’s instructing lawyer, sworn and filed 1 October 2024, gives some of the relevant circumstances.

106.	She gave evidence of interviewing the witnesses to ascertain how they came to make affidavits for the Forest Authority.

107.	I will refer only to the evidence of Mr Tony Monkwai. The others convey a similar circumstance.

108.	He gave a second affidavit against the claim, stating he was influenced and misled (by the Forest Authority) in giving the first affidavit, on 21 August 2024.

109.	He gave a third affidavit (For the plaintiffs) repudiating the second affidavit on 25 September 2024.

110.	Ms Wohuinangu stated she read their Forest Authority affidavits in language they understood, and then took their instructions to give evidence about those affidavits “on behalf of the plaintiff’s case to ensure that their position is clear and to tell the truth”.

111.	On behalf of the Forest Authority, Mr Monkwai did not recall giving consent to the plaintiffs’ lawyers to represent he and his clan members and that they were misled to support actions to stop the logging.

112.	They wanted the logging to continue.

113.	The evidence then is that he swore a further affidavit to the effect that he had misunderstood what was occurring.

114.	Mr Monkwai, in the third affidavit obtained by Ms Wohuinangu, said he was picked up by a company car and taken to the PNGFA office to sign minutes of a meeting. He said nothing was translated, he was then taken to a place called the Log Pond and given K300. He said he was shocked to see affidavits produced for the first defendant with his signature and he would not have approved of such if he understood.

115.	But Ms Wohuinangu states, at paragraph 28 of her affidavit: “During the instructions taken from both Allan Sifwa and Tony Monkwai, I attempted to show them a picture from the Internet of Mr Tobias Dalid, to confirm if he was the individual who had ushered them into the PNGFA conference room to sign the documents. At paragraph 29 she states: “Both Allan Sifwa and Tony Monkwai confirm this was the person who had told him to sign the documents.”

116.	She produced a copy of the photograph she said she showed them.

117.	In my view, panicked about the conflicts which had arisen because the witnesses were now giving two versions of events they claimed to be true, the plaintiffs’ case saw fit to obtain a third affidavit from them.

118.	This identification evidence from Ms Wohuinangu causes he same unease as her evidence of interpreting for the plaintiffs in relation to the forgery claims, as she has also interpreted for these witnesses.

119.	In doing so, her paragraph 28 which I have referred to is inadmissible evidence of leading questions to the witnesses about identification of Mr Dalid, as she states she showed them the photograph to confirm if he was the individual who ushered them into the meeting where the documents, which I take to be the second affidavits, were signed.

120.	It appears from her paragraph 28 that the two witnesses, Mr Sifwa and Mr Monkwai, were also together and shown the photograph at the same time.

121.	Transgressions have been made here. If the witnesses gave their evidence-in-chief in the witness box, they could not be asked leading questions and the same rule applies to stating their evidence-in-chief in affidavit form. The strong possibility arises that the witnesses may have been influenced by the last person they spoke to about the case.

122.	It appears there was some ham-fisted attempt to gather supporting evidence for the defendants, although the circumstances were not properly tested, and then the plaintiff’s lawyer has fallen into the same mistakes.

123.	It is entirely the wrong procedure to set out to obtain a third affidavit in support of the first statements made. The proper procedure is to leave the two conflicting affidavits to the court to make a factual decision.

124.	In my view the evidence has now been tainted to the extent that any decision for the plaintiffs now becomes difficult. The question is whether the evidence is now so unreliable that I can faithfully place little weight on it.

125.	Further, why this hearsay of Ms Wohuinangu statement was not objected to I have no idea, but then counsel for the plaintiff, in his written submissions, dated 9 October 2025, stated:
“Mr Dalid’s actions, in his role as legal director of the PNGFA, were criminal in nature, contempt of this court, and fundamentally breached his ethical duties as a lawyer. This extraordinary part of the proceedings is cogent evidence of the power imbalance between the PNGFA and the customary landowners, many of whom are illiterate and susceptible to manipulation.”

126.	That counsel stated that the witnesses may be susceptible to manipulation confirms what I have been weighing up. 

127.	But the submission went on to say that this may be considered to be actual fraud if not a constructive fraud, as well as misfeasance in public office. 

128.	At this stage I will identify that misfeasance would have elements showing the Forestry Authority or associated bodies have engaged in some act which is in itself unlawful and thus becoming improper performance of some lawful Act.

129.	These are very serious allegations to be made of a lawyer and to do so, such must be done properly.

130.	The plaintiff’s submissions go as far as stating:

“106. PNGFA did not call Mr Dalid to explain his actions and the oral evidence of their witnesses confirmed he remains the PNGFA Legal Director.
107. His continuance in the role of the PNGFA legal director and apparently still holding a practising certificate is of ongoing concern for the integrity and administration of justice. In his role at PNGFA, Mr Dalid:
(a)	Is a lawyer of a state entity in service to the people of PNG that governs and acquires resources and rights of ordinary people – landowners vested in them;
(b)	holds the trustee position of the people of PNG (as PNGFA is with acquiring trees for logging to benefit people).
108. Mr Dalid continuance in the position brings into disrepute the PNGFA and the state.
109. This uncontested evidence is strong evidence of numerous crimes, contempt of Court and breach of professional duties of Mr Dalid”.

131.	These submissions are constructed in order to make out a circumstantial case against Mr Dalid, in order to support the allegation that the FMA had been obtained by fraud.

132.	Circumstantial evidence exists when independent evidence is regarded as factual and each separate fact, taken as a whole, proves the fact-in-issue, such being that Mr Dalid has committed criminal offences in obtaining evidence on behalf of the first defendant, being the PNG Forest Authority

133.	Counsel says that Mr Dalid has fabricated evidence, deceived witnesses, conspired to defeat justice and has attempted to pervert justice

134.	The court was asked to condemn and punish such actions in the strongest of terms, as well as being told, when it should not have been raised, that complaint has been made to the Law Society.

135.	Before going to the decisions falling from all this, I need to record and keep in mind that the plaintiff submits generally that the defendants have not run their case and called the evidence as is required by the rule in Jones v Dunkel, that rule, as stated in submissions referring to RD Tuna Caners Ltd v Sengi & Ors [2022] PGSC 49; SC2232 at 91-92 (Salika CJ and Berrigan J) stating: “91. Where a party fails to produce evidence which they would be expected to rely on in support of its case, and the party fails to provide an adequate explanation for the absence, a decision maker may infer that the evidence would not have assisted the case of that party, or it may draw with greater confidence an inference that is unfavourable to that party, provide that such an unfavourable inference can be drawn from other evidence in the case: Jones v Dunkel.
92. They cannot, however, be used to fill gaps in the evidence or convert conjecture and suspicion into inference. There must be an evidentiary basis for such inference: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 at 53.” 

136.	I return to counsel’s submissions. While the plaintiff claims that it is the defendants who have not proven their case collectively and individually, in this particular and nasty allegation, it is the plaintiff who, in making the allegation, bears the onus of proving the allegations and given what has been alleged of Mr Dalid, with the possibility of proving such on the test of beyond reasonable doubt, because actual criminal activity was alleged. Such proof is not a matter I now have to consider further.

137.	The fact-finding in a judge-alone trial, like that by a jury, is based on an entitlement to accept or reject evidence, but unlike a jury, reasons must be given.

138.	I read the submissions of counsel with growing unease.

139.	The submissions and the allegations were based on Ms Wohuinangu evidence, and given in circumstances where a real question arose as to her independence.

140.	They were also based on alleged notice given to the first defendant to produce Mr Dalid to answer questions.

141.	Whatever was on counsel’s mind, he missed the point that he wants a ruling from this court absolutely denying Mr Dalid’s right to silence on what counsel turned into a criminal-style investigation.

142.	He knew, or must have known, that the photographic identification undertaken by Ms Wohuinangu would have little weight, given that such identification ought be subject to similar rules applied to law enforcement officers, including production of a number of photographs on a photo-board, reducing the witnesses evidence to a sworn statement before the identification process and recording the witnesses statements made during the process, and ensuring that no suggestion was being given.

143.	Ms Wohuinangu’s evidence goes nowhere near to these requirements, and it brings to mind poor Mr Adolf Beck, jailed in the late 1800s for false pretences, on wrongful personal identification by a number of people. His case led to the development of procedures on identification, the modern circumstances of photographic identification requiring some of the protections outlined above.

144.	Further, there was no case brought against Mr Dalid personally, yet he is being named as a criminal in circumstances which absolutely trample his human right to a fair trial.

145.	What became of his absolute right to silence, a silence which cannot be used to infer guilt?

146.	Looked at in the cold light of day all that has occurred is that some evidence from Ms Wohuinangu has come before the court in what she claims she put to Mr Sifwa and Mr Monkwai, and their evidence is now relied on as a properly obtained positive identification of Mr Dalid. There is no evidence from her as to precautions she took in the identification.

147.	All of this submission must only be aimed at obscuring and clouding the issues and why the court is told that the first defendant had been given so many days to give a response on Mr Dalid, otherwise a complaint would be made to the Law Society, smacks of coercion. That is not a matter which should ever have come before the court.

148.	The whole episode has been incredible, but in my assessment, and considering all of it as to its cogency and persuasiveness, leads me to conclude that the plaintiffs’ case has been undermined by these actions.

149.	The rule is that allegations of this nature are not made without a reasonable basis for the allegations. Keeping in mind the nature of the identification, the circumstances of the identification, the close relationship between the lawyer and the witnesses, the interpretation of their statements by the lawyer, the leading questions put, that there is no evidence of safeguards taken, that Mr Dalid has no civil case in the substantive proceedings against him here, and that his right to silence has been trampled, whether counsel had the basis of the complaints is now open to question. Counsel has privilege of protection, but whether such protection extends to allegations made here I will leave to the parties own investigation, the Court having enough to do in determining the case.

150.	That being said I will now return to the orders sought by the plaintiffs.

151.	In my view, the amount of material produced by the plaintiffs has probably caused them confusion and was probably produced in mistaken belief as to what evidence was required to prove fraud. In my view there was an absolute necessity to concentrate on admissible evidence as to all signatories on the FMA, which has not been obtained – where was the FMA signed, who was there, what do the participants now say of the four claimants here who say the signatures are not their signatures? This engagement was necessary in my view to put admissible evidence before the court. Mr Monou’s evidence of what is required is contextual, not cogent or persuasive.

152.	I also find that the actions of the lawyers for the plaintiffs, interpreting for them when affidavits appeared for the defendants, tainted the process because at that stage the evidence became adversarial and the lawyer had an interest in the outcome.

153.	That, and submissions of counsel in circumstances designed to trammel all rights of Mr Dalid have so tainted the plaintiffs’ case that it would be to pile mistake on mistake to do anything other than to dismiss the plaintiffs’ case.

154.	In doing so, I have kept in mind other facts which upon weighing them, do not support the plaintiffs’ case.

155.	I became concerned about Mr Monou’s evidence of memory when he stated the date he gave his power of attorney to Mr Namah, well after the date the FMA was signed, and I have kept in mind that his credit on memory of all events was diminished.

156.	While the first and second defendants could not produce original documents of the FMA, or the original maps, I was satisfied that the plaintiffs accepted that the copies of documents before the court were copies of the originals. It was apparent that there is very poor record-keeping by the Forest Authority, which should be addressed by management.

157.	Despite an application that the matter be determined to be a class style action pursuant to Order 5 Rule 13, without identifying all possible defendants such an order could not be made. 

158.	I have considered the alleged police actions in holding some of the plaintiffs without charge after demonstrations – that is now a matter for complaint to the police.

159.	Mr Monou produced photographs of the logging area, but I find that these are irrelevant to the claims of fraud.

160.	As to whether the matter is out of time since at least Mr Monou became aware of the agreement in 2010, there is no need to make any determination.

161.	I was not satisfied that all relevant parties, or the majority of them were notified of this proceeding or gave their consent to be represented by the plaintiffs, given that the clans gave instructions to go ahead because the ILGs may not now exist. There should have been evidence from the signatories to the FMA or those who knew what occurred when they signed the FMA. I am aware of the difficulties, but at least with some evidence decisions could be made.

162.	The second defendant also ran a case that the FMA contained an arbitration clause for dispute resolution which had not been utilised by the plaintiffs. Whether such could be utilised when four plaintiffs claimed that they were not part of the agreement because of alleged forgery, or whether at least Mr Monou had acquiesced to the FMA because he took no action, is an issue which now does not have to be determined.

163.	Finally, evidence from Jim Menge from the Authority and Mr David Ching from the company became irrelevant in view of the findings as to tainted evidence, other than the evidence of Mr Ching that where a landowner objects, the loggers go around the particular land. This evidence had two relevant considerations for this case. The first consideration being that it was unquestioned evidence that the logging company is not simply logging all land under the FMA. The second consideration being that the evidence came as a surprise to the plaintiffs, and effectively countered the submission that all intended plaintiffs had given specific instructions pursuant to Order 5 Rule 13, as these people were not showing to have authorised this proceeding so the matter could be treated as a class action. I noted that there was no cross-examination of Mr Ching on this statement – obviously counsel not knowing how many such encounters the logging company had come across, such evidence hopefully just disappearing in the mass of evidence before the court and capable of being missed.

ORDERS

1.	The Writ of Summons filed on 24 April 2023 and the whole case is dismissed.

2.	The Plaintiffs will pay the costs of the Defendants as agreed or as taxed.

Decision accordingly

Lawyers for the plaintiffs:  CELCOR Lawyers 
Lawyers for first defendant:  Namani & Associates Lawyers
Lawyers for second defendant:  Ashurst PNG
Lawyer for third & fourth defendant:  Solicitor General