SC2828

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO 101 OF 2024 [IECMS]

ANTHONY WAIRA trading as Waira Lawyers
First Appellant

MILO TIMINI
Second Appellant

YAWALE KULU
Third Appellant

PATRICK RAMA
Fourth Appellant

V

SAMUEL PENIAS as incumbent Secretary for the Department of Finance
First Respondent

ANDREW OAEKE as incumbent Secretary for the Department of Treasury
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

PHILIP LEO as incumbent Secretary for the Department of Provincial Affairs
Fourth Respondent

PAKA KUPANDA KILI for himself and on behalf of 54 others named as Plaintiffs in the Schedule
Fifth Respondent

WAIGANI: ANIS J, TUSAIS J, KHAN J
31 OCTOBER, 15 DECEMBER 2025

SUBSTANTIVE APPEAL – appeal against purported consent order – orders obtained against a non-party to the proceeding – whether right to natural justice breached – s.59 of the Constitution – not all the parties to the proceeding consented to the purported consent order of 7 August 2024 - whether the consent orders should be set aside – whether trial judge was misled by concealment of material facts – whether the respondents failed to disclose material facts – whether failure to give full disclose of the material facts constitute serious irregularities that should warrant this Court to set-aside the purported consent order of 7 August 2024 – consideration – ruling

PRACTICE AND PROCEDURES - whether purported consent order of 7 August 2024 constitutes ‘consent order’ within the meaning of s.14(2) of the Supreme Court Act Chapter No. 37 – purported consent order not signed by all representatives of all the plaintiffs in the original proceeding OS 32 of 2010 – consideration – ruling

PRACTICE AND PROCEDURES – application for leave to adduce fresh evidence – s.6(1)(a) – Supreme Court Act Chapter No. 37 – application consented to – application granted

PRACTICE AND PROCEDURES – competency challenges – whether application properly before the Court – consideration – ruling

Facts:

The first appellant was the lawyer for the second, third and fourth appellants in the National Court in various court proceedings.  They filed this appeal because they were aggrieved by a purported consent order of the National Court that was made on 7 August 2024, in proceeding OS 32 of 2010 – Paka Kupanda Kili and Ors v. Gabriel Yer and Ors.  They seek to primarily set aside the said purported consent order.  They argue, amongst others, that the order was obtained, (i) without their knowledge and consent, (ii), without giving them the right to be heard thereby was a breach of their rights under s.59 of the Constitution, and (iii), without the respondents giving full disclosure to the Court, (a), that proceeding OS 32 of 2010 had concluded some 13 years ago, (b), that there was already a Court Order in place that had directed the respondents to file fresh proceedings and, (c), that fifth respondents and their lawyers do not act for all the plaintiffs in OS 32 of 2010 since they had their own lawyer which was the first appellant who had been acting for them at the material time before and after the purported consented order of 7 August 2024 was obtained.

Held:

1.	The fifth respondent, his faction and lawyers misled the trial Court into granting the purported consent order of 7 August 2024.

2.	All lawyers of the National and Supreme Courts of Papua New Guinea are officers of the Courts; part of their duties and obligations include giving full disclosures of material facts to the Courts.

3.	Undisputed relevant material facts were not disclosed to the trial Judge in what was an ex-parte application hearing where the respondents had sought to vary final orders of the Court.

4.	Proceeding OS 32 of 2010 – Paka Kupanda Kili and Ors v. Gabriel Yer and Ors had concluded more than 13 years ago at the time when the purported consent order of 7 August 2024 was granted which was contrary to the Doctrine of Finality/ Finality of Judgment.

5.	The purported consent order of 7 August 2024 contained substantive variations made to the original Court Order; it also contained new orders that were unrelated to the original proceeding.

6.	The purported consent order of 7 August 2024 was not a consent order because not all the parties in proceeding OS 32 of 2010 gave their consents before the order was endorsed by the Court.

7.	Due to non-disclosure of the materials facts, serious irregularities were committed by the trial Court thus warranted this Court to have it set aside.

8.	Serious irregularities included (i) breach of s.59 of the Constitution, (ii), granting the purported consent order of 7 August 2024 without the consent of all the plaintiffs, (iii), making substantive orders as well as new changes to the final court order in what was a completed matter, (iv), making final orders against a non-party to OS 32 of 2010 which was the first appellant, and (v) making orders that contravened other existing and binding Court Orders of the National Court in related proceedings.

9.	The appeal was upheld, the purported consent order of 7 August 2024 was set aside, and cost of the appeal was awarded against the third respondent.

Cases cited

Sarea v Moutu (2019) SC1893
Rai v. Imbuni (2021) SC2080
Delta Corporation Ltd v. National Superannuation Fund Ltd (2024) SC2587
Arnold Amet v Peter Yama (2010) SC1064
Kitogara Holdings vs NCDC [1988-89] PNGLR 346
Mondiai v. Wawoi Guavi Timber Co. Limted (2007) SC886
SCA 107 of 2023 – Nug Mamtirin and Ors v. Michael Donnelly and Ors (2024), Unreported decision delivered on 2 August 2024 (Hartshorn, Polume-Kiele and Carey)
Jimmy Lama v. NDB Investment Ltd (2015) SC1423
Nellie Kurao v. Kulu Leka (2025) SC2702
John Jimberi Jr v. Thomas Yetuin (2025) SC2707
Paim Kumbipara Holdings Ltd v. Mountain Catering Ltd (2022) N9473
Atlas Corporation v. Ngangan (2020) SC1995
Ted Taru and 1 Or. v Pacific MMI Insurance Ltd and Ors (2024) N10948
Toale Hongiri Incorporated Land Group and Ors v. Wolotou Incorporated Land Group and Ors (2012) SC1201
Anthony Hamaka and Ors v. Martin Kombri and Ors (2022) N9916
Karen Nugi T/A Pang Legal Services v. Komap Mapulgei Business Group Inc. and Ors (2025) N11442

Counsel

A Waira, the first appellant, in person
R Pokea, for the second, third and fourth appellants
H Konkori, for the first, second, third & fourth respondents
J Issack, for the fifth respondent

1.	BY THE COURT: We heard the substantive appeal on 31 October 2025 and reserved our decision to a date to be advised.

BACKGROUND

2.	The persons affected by this appeal and dispute are former assembly members of the Southern Highlands Provincial Government (former members).  They commenced OS 32 of 2010 – Paka Kupanda Kili and Ors v. Gabriel Yer and Ors (OS 32 of 2010) in 2010.  They sought, amongst others, declaratory orders for outstanding entitlements they claimed were owed by the State to them during their tenures as assembly members for the provincial government.

3.	On 24 September 2010, the National Court awarded the former members a judgment sum of K33,931,371.71 with other consequential orders (Original Court Order).  Other orders were also made thereafter for enforcement and distribution purposes.  The order that was made that is the subject of the appeal was made on 7 August 2024 (purported Consent Order of 7 August 2024).

LEAVE TO ADDUCE FRESH EVIDENCE

4.	But prior to the actual appeal hearing, we dealt with an application to adduce fresh evidence which was filed by the first appellant.  The respondents conceded to the application, and as such and in an extempore ruling, we permitted the fresh evidence to be included into the Appeal Books (3 Volumes, filed 3 April 2025) (AB).  We would refer to our extempore decision in the transcript for our full reasonings.

COMPETENCY GROUNDS

5.	The fifth respondent also raised 3 preliminary matters through his counsel.  The preliminary matters contain objectionable grounds to the competency of the appeal.

6.	The fifth respondent alleges that the appeal is incompetent because (i), the second, third and fourth appellants were represented by the fifth respondent in OS 32 of 2010 – Paka Kupanda Kili and Ors v. Gabriel Yer and Ors (OS 32 of 2010) thus had consented to the purported Consent Order which they now seek to challenge, (ii), the names of the first, second, and fourth defendants in OS 32 of 2010 were replaced with new names in the present appeal without leave of the Court thus makes the appeal incompetent, and (iii), his name was omitted in the original notice of appeal that was filed.

7.	We begin by acknowledging that this Court has an inherent jurisdiction to, on its own volition and at any stage of a proceeding, consider jurisdiction or competency issues.  Cases: Sarea v Moutu (2019) SC1893, Rai v. Imbuni (2021) SC2080 and Delta Corporation Ltd v. National Superannuation Fund Ltd (2024) SC2587.  And both the National and Supreme Courts have obligations to protect or safeguard their judicial processes from abuse.  See case: Arnold Amet v Peter Yama (2010) SC1064.

8.	During the hearing, we note that when counsel for the fifth respondent was pressed on whether the competency grounds were flawed or baseless, counsel appeared to concede that they were.  However, at the end of counsel’s submissions, he urged the Court to consider his client’s submissions in full.  

9.	We will therefore dismiss the grounds of objection premised on concession by the fifth respondent.

10.	Regardless of our first ruling, it is obvious to us that the 3 purported objections do not raise jurisdictional issues that should warrant serious considerations by us.  As for ground 1, the fifth respondent complains that the second, third and fourth appellants should be removed as parties to the appeal; that they are not necessary parties.  This is not a valid ground for competency of an appeal that should warrant serious consideration.  We also refer to s. 17 of the Supreme Court Act No. 37 (SC Act) which refers to a “person”, as opposed to a ‘party to a proceeding’ who may appeal to the Supreme Court.  Cases:  Kitogara Holdings vs NCDC [1988-89] PNGLR 346 per Kapi J. at 349 and Woods J at 351 and Mondiai v. Wawoi Guavi Timber Co. Limted (2007) SC886 at para. 36. 

11.	In regard to ground 2, the fifth respondent complains that the names of the individuals who are sued in their capacities have been varied; he complains that leave was not sought to make the variations.  Again, this, in our view, is not a jurisdictional issue that an objection hearing Court should concern itself with.  We also observe that the office upon which these individuals are sued under remain unchanged.  The appeal is lodged against these individuals premised on their official capacities for the offices that they hold.  We observe that if these were defects, then they could easily be cured with an application or with leave of the Court.  We dismiss this ground of objection.

12.	Finally, and in regard to ground 3, the fifth respondent complains that he was not named in the original notice of appeal, and therefore and regardless of the fact that he had applied for and was granted leave to be added as the fifth respondent, that the appeal remains incompetent.  Again, and in our view, this is not a valid ground of appeal.  It does not raise any jurisdictional issue that is worth considering.  The fifth respondent is also already named as a party to this appeal.  We therefore dismiss this ground of objection.

13.	We will end with this further observation.  The 1st ground of objection and the submissions of the fifth respondent in general, appears to “deep dive” into the heart of the appeal grounds.  The appellants are claiming in the appeal, amongst others, that their interests and court proceedings were different to that of the fifth respondent and his group therefore the trial Judge erred when he endorsed the purported Consent Order of 7 August 2024 in OS 32 of 2010.  They allege that pursuant to a separate proceeding, OS 22 of 2023 – Paka Kupanda Kili and Ors v. Albert Mokal (OS 22 of 2023), their interests and benefits were separated from those of the fifth respondent and 5 others who fell under a separate group or faction.  They allege that the fifth respondent had attempted to dismiss OS 22 of 2023 which was refused by the National Court and that the National Court had also ordered the separation of the two factions, one to be led by the first appellant (First Faction) and the other by the fifth respondent (Second Faction).

14.	Therefore, and in our view, these are matters that should be properly ventilated in the substantive appeal hearing.

OTHER PRELIMINARY MATTER

15.	The first, second, third and fourth respondents, in their responding submissions, submitted that the first appellant had no standing to appeal since he was not a party in OS 32 of 2010.  

16.	We dismiss this argument as baseless.  Again, we refer to s.17 of the SC Act which permits “a person who is aggrieved”, like the first appellant in the present case, the right to appeal to the Supreme Court against a decision of the National Court that affects his or her interests or rights.  Cases: Kitogara Holdings v NCDC (supra) and Mondiai v. Wawoi Guavi Timber Co. Limted (supra).

GROUNDS OF APPEAL

17.	The Notice of Appeal (NoA) is contained at pp. 1 of the AB.  The appellants filed 8 grounds of appeal.  At the start of the hearing, the appellants abandoned grounds 1(a), 2(b), 5, 7 and 8.

18.	The grounds of appeal pursued are 1(b), 2(a), 3, 4 and 6. We set them out herein:

1.	His Honour erred in law and in fact and or lacked jurisdiction in endorsing the consent orders when there were serious procedural irregularities on the face of the record in that:
……
b	The matters OS No. 23 of 2020 Between Jerry Luru and Albert Mokai on their own behalf and on behalf of other former Provincial Members whose names appearing in the Schedule “A” of this Originating Summons – Plaintiffs and Leslie Ako Kari Trading as PNG Legal Services Lawyers-First Defendant and The Independent State of Papua New Guinea [hereafter described as OS No. 23 of 2020] and OS No. 22 of 2023 Between Paka Kupanda Kili, Yawale Kulu, and Jerry Luru on their behalf and on behalf of 30 others whose names appearing in the Schedule “A” of this Originating Summons – Plaintiff s and Albert Mokai-Defendant [hereafter described as OS No. 22 of 2023] were concluded by consent orders and the Third Respondent failed to lodge the appeal the decisions to the Supreme Court or file fresh proceedings in the National Court as established in Simon Mali -V- The State [2002] SCA No. 690 to vary consent orders and declared two other concluded matters  null and void.

2.	The Court erred in law and or lacked  jurisdiction in endorsing the consent orders without giving opportunity to the Second Appellant, the Third Appellant and the Fourth Appellant  to be heard and their rights to be hear were denied and Court did not act fairly as required by section 59 [2] of the Constitution and breached the principal of natural justice. This has happened when:

a.	Three Appellants did not participate in negotiations discussion for variations by themselves or through their lawyer who is the First Appellant persons and they did not consent.
……

3.	The Court erred in law and or lacked jurisdiction in endorsing the consent orders without giving opportunity to the First Appellant to be heard and first not act fairly as required by section 59 [2] of the Constitution and breached the principal of natural justice. This has happened when:

a.	The First Appellant was a non-party in OS No. 32 of 2010 and is a lawyer representing three Appellants and 22 other Plaintiffs and consent orders have serious effects on his profession and as a person.

4.	His Honour erred in law and or lacked jurisdiction in endorsing the consent orders as the terms of the consent orders 6 and 7 did not identify the Plaintiffs as K8million was disbursed by the authority of the Court Rules and the allegation that the First Appellant stole K8million was falsely raised by those persons who are not happy with the First Appellant for not paying any money when disbursing K8million.
……

6.	His Honour erred in law and or lacked jurisdiction in endorsing the consent orders when there was a non-discloser of relevant facts at the time when draft order was presented to the Court that the First Appellant is representing 26th Plaintiffs by Court order issued on the 27th December 2023 in OS No. 22 of 2023 and Justin Issack of Lawama Lawyers was appointed to act for the Third Respondent under section 7 of the Attorney General Act.

19.	We have no issue in first dismissing ground 4.  The ground is vague and does not make grammatical sense.  It also appears as a submission and not a ground of appeal which is not permitted under Order 7 Rule 9(c) of the Supreme Court Rules (SCR) and the case law.  Cases:  SCA 107 of 2023 – Nug Mamtirin and Ors v. Michael Donnelly and Ors (2024), Unreported decision delivered on 2 August 2024 (Hartshorn, Polume-Kiele and Carey), Jimmy Lama v. NDB Investment Ltd (2015) SC 1423, and Nellie Kurao v. Kulu Leka (2025) SC2702 at para. 10.

ISSUES

20.	The main issues for determination are related which are as follows:

(i)	Whether the fifth respondent and his lawyers misled the Court at the hearing on 7 August 2024 by concealing material facts;

(ii)	Whether there were serious irregularities committed by the Court when it endorsed the purported Consent Order of 7 August 2024;

(iii)	Whether the appellants’ rights to natural justice under s. 59 of the Constitution were breached when the Court granted the purported Consent Order;

(iv)	Whether all the plaintiffs or the former members gave their consent as alleged by the respondents when they asked the trial Court to endorse the purported Consent Order of 7 August 2024;

(v)	whether OS 32 of 2010 was a concluded matter, and if so, whether there was a breach to the doctrine of finality or finality of judgment;

(vi)	whether the purported Consent Order breached or contravened other existing National Court Orders that are related to the same matter.

RELEVANT COURT ORDERS OF OS 32 OF 2010

21.	We observe that various orders, consent orders and court proceedings were entered and commenced after OS 32 of 2010 was concluded with judgment entered in favour of the former members.

22.	The Original Court Order is dated 24 September 2010.  It reads in part.

1.	The entitlements for the Plaintiffs in this action is assessed at K33,931,371.71 against the Third Defendant.

2.	The Plaintiffs unpaid entitlements be paid by the Third Defendant.\

3.	The Third Defendant is to pay interest from the date of filing the Originating Summons.

4.	The Solicitor General takes steps for the payment of these monies as per the Claims By and Against the State Act.

5.	That in the event that the K30,000,000.00 is paid into Court on the 12th of May 2010 this judgment amount be partly settled from such.

6.	Costs paid by the Third Defendant to be taxed if not agreed between the parties.

7.	Time for the entry of judgment is abridged to the day of settlement by the Registrar which shall take place forthwith.
……

23.	After that, the late Mr. Kari, on behalf of the former members, obtained Consent Orders from the Court on 6 October 2017 in OS 32 of 2010 (pp. 652 of the AB), which were in the following terms:

1.	The Solicitor General endorses the current Certificate of Judgement together with a proviso in her letter to the Secretary for Department of Finance advising him to reduce the judgment sum from the part payments already made to some Plaintiffs under Deeds of Release.

2.	The amount of K1,472,912.00 already paid to the Plaintiffs is to be deducted from the total judgment sum of K33,931,371.71.

3.	For clarification interest ordered on the 24th June 2010 and perfected on the 24th September 2010 is to be calculated at the rate of 8% and in two stages.

i)	22 February 2010 to 28 November 2012 on the amount of K33,931,371.71; and

ii)	29 November 2012 to 2 December 2017 (or till the principal sum is paid) on the balance of the judgment sum of K32,458,459.71.

4.	For purposes of informing the National Executive Council (NEC) of the judgments and for obtaining approval to secure additional funding to honour the outstanding judgment debt, a Submission be prepared and sent forthwith.

5.	Upon approval granted by NEC to secure additional funding, the Budget Priorities Committee shall take necessary steps to secure additional funding out of funds legally available to off set the balance of the judgment debt by or before the close of this financial year (2017), or within reasonable time thereafter.

6.	Notwithstanding terms 4 & 5 of these orders, the Defendants take immediate steps to ensure part payments are made forthwith out of funds currently available towards the outstanding judgment debt.

7.	That all or any cheques raised as payments by the Department of Finance of such amounts including costs and interests calculated thereafter from time to time, be raised and paid into PNG Legal Services Trust Account to be disbursed.

8.	Upon the evidence of a letter of request as is stated paragraph 1 & 6 above being confirmed the Contempt Proceedings shall be withdrawn.

9.	The Plaintiffs provide information or details of all payments received through Kuman Lawyers.

10.	The costs of and incidentals of pursuing this claim be paid by the Third Defendant on a party-party basis which are to be taxed unless agreed.

11.	The time for the entry of the Orders is abridged to the day of settlement by the Registrar, which shall take place forthwith.

COURT ORDERS OF OS 23 OF 2020

24.	After the above 2 court orders (i.e., the Final Court Order and the Consent Orders of 6 October 2017), the former members had issues with their lawyer Mr. Kari.  They then commenced OS No. 23 of 2020; Jerry Luru and Albert Mokai on their behalf and on behalf of 8 others -v- Leslie Kari trading as PNG Legal Services and the State (OS 23 of 2020).  The former members were dissatisfied in the manner of distribution of their judgment monies by Mr. Kari.  The first appellant (Mr. Waira) was engaged to act for the former members (i.e., the 2 factions) against Mr. Kari and the State.  On 7 August 2020, the parties in OS 23 of 2020 reached a consensus to end that proceeding.  The Court endorsed their Consent Order (pp. 256 of the AB) which was in the following terms:

1.	This matter is summarily determined.

2.	The disbursement Order number 7 in OS No. 32 of 2010 between Paka Kupandi Kili and 61 others -v- The Independent State of Papua New Guinea and Three Others is varied as follows:

(a)	The First Defendant continues to represent the Plaintiffs in this matter and collects the payments from the Department of Finance and disburse as endorsed by the Disbursement Committee until judgment debt is fully settled.

(b)	The Plaintiffs in this matter continues to pay 15% from each payment collected from the Department of Finance to the First Defendant for the services rendered to obtain judgment in OS No. 32 of 2010 and to continue collect payment and disburses until judgment debt is fully settled and the payments constitute full and final payments for the services rendered and for costs.

(c)	Mr. Jerry Luru and Mr. Albert Mokai are part of Disbursement Committee comprising of Mr. Leslie Kari, Mr. Paka Kili, Mr. Yawale Kulu, Tajako Hulu, Naiko Ipe and Evan Wapa as of the date of this order.  In the event Mr. Jerry Luru and Mr. Albert Mokai could not attend the meeting for any reason, Mr. Patrick Rama and Mr. Gabi Molo take their place.

(d)	The First Defendant ensures that the Disbursement Committee meets and makes decisions on how much to pay to each Plaintiff in this matter and OS No. 32 of 2010 and makes payments as approved by the Committee in all future disbursements

(e)	The Disbursement Committee considers the schedule of payment or master list recognized in OS No. 32 of 2010 that is annexed as annexure “D” in the Affidavit of Joe Walo Kuna sworn on the 27th July 2020 and filed 29th July in this matter and payments to be paid to each Plaintiff be calculated proportionally.

(f)	The First Defendant pays the payments due to the 9 Plaintiffs in this matter apart from Pawa Kombea to Waira Lawyers Trust Account in each payment or disbursement as approved by the Disbursement Committee.

3.	Parties meet their own costs of the proceedings.
……

25.	So, OS 23 of 2020 was concluded on 7 August 2020.

COURT ORDERS OF OS 22 OF 2023

26.	On 2 February 2023, the former members engaged the first appellant to file proceedings against Albert Mokai in proceeding OS No. 22 of 2023; Paka Kapanda Kili, Yawale Kulu and Jerry Luru on their own behalf and on behalf of 30 others -v- Albert Mokai (OS 22 of 2023).  The proceeding was commenced after the former members had issues on whether the first appellant (Mr. Waira) would act for all of them or for only certain factions who had been plaintiffs in OS 23 of 2020 [pp. 74 of the AB].  Other consequential or variation orders were also sought in the said proceeding.

27.	We observe that it was during this period that division between the 2 factions began.

28.	The parties initially agreed and signed consent orders to end or resolve OS 22 of 2023.  That is, on 10 February 2023, they signed a consent order which was endorsed by the Court [pp. 181 of the AB].  It was in the following terms:

1.	This matter is summarily dismissed.

2.	The orders 2 a, b, c, d, e and f in OS No. 23 of 2020 between Jerry Luru and Albert Mokai on their behalf and behalf (sic) of 8 other former Southern Highlands Provincial Members whose names appearing in the Schedule “A” of the Originating Summons and Leslie Ako Kari trading as PNG Legal Services Lawyers issued on the 7th August 2020 are varied in their application to the Plaintiffs and the Defendant in this matter and any other persons who give lawful authorities to Waira Lawyers to represent and new order is:

a.	Order 2[c] in OS No. 23 of 2020 specifically provides for lawyer Leslie Kari to be part of the disbursement committee in disbursing the funds and upon passing of Leslie Kari on or about 7th January 2023, orders within order 2 a, b, c, d, e, and f cannot be enforced without variation.

b.	The remaining amount pursuant to the judgment debt in OS No. 32 of 2010 Between Paka Kupanda Kili on behalf of himself & 54 others whose names are stated in the Schedule as Plaintiffs and The Independent State of Papua New Guinea and Three others as the Defendants be collected from the Department of Finance by Waira Lawyers and disburse from its Trust Account until the judgment debt and interests’ components are fully paid.

3.	For clarification, order 7 in OS No. 32 of 2010 is nonexistent and is unenforceable as it was varied by order 2 a, b, c, d, e, and f in OS No. 23 of 2020 on the 7th August 2020.

4.	For further clarification, Waira Lawyers is to submit the cheque, within (sic) cheque no. 085174 drawn under PNG Legal Services amounting to K4m to the Department of Finance for a new cheque to be drawn under Waira Lawyers Trust Account for collection and disbursement.

5.	For convenience, Waira Lawyers in disbursing K4m cheque within cheque no. 085174 or any other future payout that are clearly considered to be inclusive of the deceased person’s monies based on the judgment debt, deduct for its fees and forward the amount(s) to the Public Curator by way of bank cheque(s) for administration under Public Curator Act 1951.

6.	Order 5 above does not prevent Waira Lawyers right to represent anyone who has the right to the deceased persons share out of K4m cheque within cheque no. 085174 or any other future payout based on the judgment debt as long as the lawful authorities under the Public Curator Act 1951 to represent are granted or obtained.

7.	Parties meeting their own costs.
……”

29.	After that, however, issues of distribution and control of the judgment monies escalated between the former members and their lawyer the first appellant.  The fifth respondent, for himself and for the Second Faction decided then to engage a new law firm called Kimbu & Associates to challenge the final consent order of 10 February 2023 which was obtained in OS 22 of 2023.  The Second Faction through Kimbu & Associates filed a notice of motion on 7 July 2023 in OS 22 of 2023 to seek various relief including setting aside the Consent Order of 10 February 2023 (pp. 133 to 145 of the AB].

30.	On 27 December 2023, the National Court dismissed the Second Faction’s notice of motion.  The notice of motion was not moved at that time.  It appears that Mr. Waira had requested for the matter to return to Court before His Honour Kandakasi DCJ (pp.151 to 152) where draft orders were then presented for endorsement.  The Court proceeded to issue the following orders ex parte:

1.	The Notice of Motion filed by Kimbu and Associates Lawyers filed on the 7th July 2023 to set aside the judgment and Orders granted by this Court on the 10th February 2023 is struck out forthwith.

2.	The six (6) Plaintiffs namely Paka Kupanda Kili, Nakon Ipe, Margaret Morris, Wagiabu Iriba, Kee Toap and Evan Wapa are removed as the Plaintiffs in this proceeding and judgment and orders granted by this Court on the 10th February 2023 do not apply to them and they are at liberty to file a new proceeding to protect their interests in respect of the judgment debt in OS No. 32 of 2010.

3.	The Third Defendant or the Department of Finance in OS No. 32 of 2023 is prevented from making any payment to six Plaintiffs named in order 2 above pending them filing new proceeding and taking our formal orders and present the orders through the Office of Solicitor for payment.

4.	The twenty six [26] Plaintiffs who are in agreement with the Court Orders issued on the 10th February 2023 in this matter are to approach the Department of Finance for payment through Waira Lawyers without going through the clearance process adopted by the Solicitor General.

5.	The twenty nine [29] or any deceased estates or monies be collected from the Department of Finance by Waira Lawyers as the firm has been appointed as the agent of the Public Trustee on the 4th December 2023.

6.	The lawyers for the Plaintiffs properly calculate amount each Plaintiff including the deceased’s share from the balance of K14,658,459.00 judgment debt and forward the correct amounts together with the interests to the Department of Finance for payment.

7.	The Bank of Papua New Guinea especially the employees namely Jason Tirime and Elizabeth Genia are prevented from taking any irrelevant issues on the Court Orders or (sic) who should benefit from the judgment debt and avoid performing their duties in clearing the Plaintiffs cheque unless serious breaches of any law is detected or fresh orders settling aside the orders or stay from the Supreme Court are presented hereafter.

8.	Parties meet their own costs.
……”

CONSENT ORDER OF 7 AUGUST 2024 THAT IS APPEALED AGAINST

31.	The fifth respondent who was leading the Second Faction, having had their notice of motion dismissed in OS 22 of 2023, decided to return back to the original completed proceeding, that is, OS 32 of 2010, and in so doing, filed a notice of motion on 22 July 2024 [pp. 657 and 659 of the AB] where they sought orders to vary the terms of the Final Court Order.

32.	It is important to note that at the time of filing their notice of motion, the other orders were in existence as well as the division between the 2 factions.

33.	Regardless, the Second Faction, proceeded and called a hearing of OS 32 of 2010 and moved its notice of motion before Coates J.  The purported Consent Order of 7 August 2024 was then granted (at pp.838 of the AB) by the Court. 

34.	It reads and we quote in part:

THE COURT orders by the consent of the parties that:

1.	Pursuant to Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution, the terms of the Consent Order of 6th October 2017 obtained herein this proceeding are varied due to supervening events and significant change of circumstance.

2.	Consequent to Term 1 above, insofar as the Consent Order of 6th October 2017 is current and effective to date, until this variation takes effect, the two related proceedings styled OS No. 23 of 2020; Jerry Luru and Albert Mokai on their behalf and on behalf of 8 others -v- Leslie Kari trading as PNG Legal Services and the State, and OS No. 22 of 2023; Paka Kapanda Kili, Yawale Kulu and Jerry Luru on their own behalf and on behalf of 30 others -v- Albert Mokai, commenced by Waira Lawyers on purported instructions from a faction of the same Plaintiffs over the same cause of action in this proceeding, are declared to be improperly and irregularly instituted and are therefore declared null, void and of no effect ab initio.

3.	Consequent to Terms 1 and 2 above, any purported Court Orders or Consent Orders taken out of the two related proceedings referred to above in Term 1 by any party or their lawyers including Waira Lawyers, any consequential actions or things purportedly done in compliance of or to give effect to those Orders, are all declared invalid, illegal, null and void, and of no effect ab initio.

4.	Consequent to Terms 1, 2 and 3 above, a purported legal clearance letter by Solicitor General dated 26th May 2023, requesting the Secretary for Department of Finance to proceed to generate two cancelled cheques for K4 million each in the sum of K8 million to Waira Lawyers Trust Account, is declared invalid, illegal, null and void, and of no effect ab initio.

5.	Consequent to Terms 1, 2, 3, and 4 above, the two purported cheques for K4 million each in the sum of K8 million raised by Department of Finance and paid to Waira Lawyers Trust Account (Cheque No. 089920 and Cheque No. 089921) respectively, are declared illegal and unlawful payments made by Department of Finance to Waira Lawyers Trust Account.

6.	Consequent to Terms 1, 2, 3, and 4 above, the two purported cheques for K4 million each in the sum of K8 million raised by Department of Finance and paid to Waira Lawyers Trust Account (Cheque No. 089929 and Cheque No. 089921) respectively, shall be reimbursed by Waira Lawyers to the Plaintiffs through their nominated law firm, Lawama Lawyers Trust Account for disbursement.

7.	For clarification, consequent to Term 6 above, the K8 million paid to the Waira Lawyers shall be reimbursed to the Plaintiffs as follows:

(a)	Waira Lawyers shall reimburse only K4, 601,418.38 to the Plaintiffs through their nominated Lawyers Trust Account.
(b)	The balance of K3, 398,581.62 shall be immediately transferred to the Plaintiffs nominated Lawyers Trust Account from Kimbu & Associates Trust Account.

8.	Consequent to Terms 1, 2, 3, 4, 5 and 6 above, Mr. Anthony Waira of Waira Lawyers be referred to relevant authorities for further investigation into his alleged fraudulent, criminal and unprofessional conduct in procuring and defrauding the State and the Plaintiffs of their judgment debt in the amount of K8 million.

9.	Consequent to Terms 1, 2, 3, 4, 5 and 6 and 8 above, the amounts of K1, 472,912.00 and K17.8 million already paid to the Plaintiffs, and the K8 million paid to the Waira Lawyers, shall be deducted from the total judgment sum of K33,931,371.71, following the calculations shown below:

(i)	Judgment Sum:				= K33, 931,371.71
(ii)	Total of amounts already paid:
K1,472,912.00 + K17.8 million + K8 million)	= K27,272,912.00
(iii)	Remaining Balance:				= K6, 658,459.71

10.	For clarification, interest ordered on the 24th June 2010 and perfected on the 24th September 2010 is to be calculated at the rate of 8% and in three (3) stages:

i)	22 February 2010 to 28th November 2012 on the amount of 
K33, 931,371.71; and

ii)	29 November 2012 to 2 December 2017 (or till the principal sum is paid) on the balance of the judgment sum of K32, 458,459.71.

iii)	3rd December 2017 to 20th December 2024 (or till the principal sum is paid) on the balance of the judgment sum of K6,658,459.71.

11.	That all or any cheques raised as payments for the outstanding balance of 
K6,658,459.71 by the Department of Finance, including costs and interests calculated thereafter from time to time, be raised and paid into Lawama Lawyers Trust Account to be disbursed to the Plaintiffs.

12.	Time of the entry of these orders is abridged to take place forthwith upon the Court signing the Orders. 

OBSERVATIONS

35.	We make the following observations premised on the undisputed facts that we observed in the evidence and submissions of the parties:

•	OS 32 of 2010 was concluded on 24 September 2010;
•	Judgment was entered in favour of the former members (the 2 factions) against the State;
•	The late Leslie Kari of PNG Legal Services Lawyers was the then lawyer for the former members;
•	The Judgement awarded in favour of the former members was K33,931,371.71 plus interest at 8% per annum and cost;
•	A Certificate of Judgment, pursuant s.13(2) of the Claims By and Against the State Act 1996, was issued by the Registrar of the National Court on 5 October 2010 (pp. 958 of the AB);
•	Disputes then arose that the monies held by their then lawyer Mr Kari were not properly disbursed to the former members; 10 of the members engaged the first appellant and filed OS 23 of 2020 [at pp. 58 of the AB] against Mr Kari and his firm; they alleged that their monies were inappropriately disbursed by Mr Kari to, amongst others, the fifth respondent;
•	OS 23 of 2020 was summarily determined by the consent order of 7 August 2020 [pp. 256 of the AB];
•	On 23 January 2023, Mr Kari passed on;
•	The first appellant was engaged to act for the former members in relation to the disbursement of the funds that had been obtained in OS 32 of 2010 which remained unsettled in full by the State;
•	They then filed OS 22 of 2023 [at pp. 74 of the AB].  One of the former members Albert Mokai raised issues against the first appellant concerning his role or representative capacity to act for all the former members.  The primary relief sought was to declare Mr. Mokai claims against the first appellant as negligent;
•	On 10 February 2023, a final consent order was signed between the parties in OS 22 of 2023, it was endorsed by the Court [at pp. 181 of the AB] and the matter was concluded;
•	But later, the division between the 2 factions escalated; this caused the Second Faction to engage Kimbu & Associates Lawyers, and they filed a notice of motion to try to set-aside the concluded Consent Order of 10 February 2023 in OS 22 of 2023.  
•	On 27 December 2023, the National Court in OS 22 of 2023, in an exparte hearing, endorsed draft orders that were presented by Mr. Waira for the First Faction.  The draft order is stated above (see also pp. 1006 of the AB).  Term 1 of the order struck out the Second Faction’s notice of motion where they had sought to set aside the consent order of 10 February 2023.  The National Court also granted terms 2 and 3 of the draft order which are relevant for this purpose which state:
2.	The six (6) Plaintiffs namely Paka Kupanda Kili, Nakon Ipe, Margaret Morris, Wagiabu Iriba, Kee Toap and Evan Wapa are removed as the Plaintiffs in this proceeding and judgment and orders granted by this Court on the 10th February 2023 do not apply to them and they are at liberty to file a new proceeding to protect their interests in respect of the judgment debt in OS No. 32 of 2010.

3.	The Third Defendant or the Department of Finance in OS No. 32 of 2023 is prevented from making any payment to six Plaintiffs named in order 2 above pending them filing new proceeding and taking out formal orders and present the orders through the Office of Solicitor for payment. 

[Bold lettering and underlining ours]

•	Instead of filing a separate proceeding as directed by the Court as per its Order of 27 December 2023 in OS 22 of 2023, the Second Faction returned back to the original proceeding OS 32 of 2010 which had concluded, and applied for variation orders to be made to the Final Court Order and the other consent order that was made on 6 October 2017;
•	As a result, and on 7 August 2024, the National Court issued the purported Consent Order of 7 August 2024 which is now the subject of this appeal.

CONSIDERATION

36.	The decision of the trial Judge that granted the purported Consent Order of 7 August 2024 is located at pp. 1176 of the AB.  It is also quoted above herein.

37.	Mr. Issack for the Second Faction was the only counsel that appeared on that day to present the draft orders to the Court.  We observe that the hearing was brief and took a total of 5 minutes to conclude.  We observe that counsel did not give full disclosure of the material facts as captured above herein including the related proceedings and various court orders that were made.  Instead, Mr. Issack informed the Court as follows and we quote in part (pp.1177 of the AB):

Mr. Issack:  This relates to some outstanding payments for some of those ex or former provincial government members.

His Honour:  I see.

Mr. Issack:  Some payments were already received.  There is only a balance remaining with interest and costs.

His Honour:  Yes.
……

38.	Shortly after that, Mr. Issack presents the draft order to the Court, and at line 20, pp. 1179 of the AB, His Honour states:

His Honour:  Yes, all right.  This is a matter which the parties are ending by orders for consent.  Consent orders between all the parties interests to do with amounts of payments from government entities to the plaintiffs.  Consent order is made in 2017.  This is merely a variation and the Acting Solicitor General-General and lawyer for the defendants, Mr E’ava Geita has signed the orders which – the draft orders which he wishes the court to make as has the plaintiff has listed so I make those orders.  Thank you.

39.	So, did His Honour err in law and fact or lack jurisdiction when he endorsed the consent orders because there were serious procedural irregularities committed on the face of the record at the material time?  

40.	We note the submissions of the parties.

41.	We will answer this question in the affirmative.

42.	We begin by finding that His Honour was apparently misled by counsel for the Second Faction.  

43.	Mr. Issack appeared to have misled the Court because:

(i)	he failed to disclose to the Court that OS 32 of 2010 had concluded on 24 September 2010;

(ii)	he failed to disclose to the Court that OS 23 of 2020 and OS 22 of 2023 were also concluded on 7 August 2020 and 10 February 2023 respectively;

(iii)	he failed to disclose to the National Court what another National Court in OS 22 of 2023 had ruled on 27 December 2023, that is, where the Court had directed, amongst others, that his clients the Second Faction was to pursue its interests in OS 32 of 2010 by filing a fresh proceeding;

(iv)	he failed to inform the Court that the variation orders sought by his client where in fact substantive in nature which included orders that had nothing to do with proceeding OS 32 of 2010 such as referring a non-party, namely the first appellant, to the relevant authorities for investigation and prosecution for alleged fraud and unprofessional conduct as a lawyer;

(v)	he failed to give full disclosure to the Court of the events that had occurred, the various court proceedings that had been filed and the disagreements and division that were already in place between the former members and the fact that the fifth respondent and his faction the Second Faction, no longer represented all the former members who were originally named in OS 32 of 2010;

(vi)	he failed to inform the Court that the First Faction were represented by the first appellant and that they did not give their consent to the purported Consent Order that he was about to present to the Court to endorse.

44.	Consequent to the above findings, we find serious irregularities in the purported Consent Order of 7 August 2024. 

45.	The first 2 irregularities committed were as follows.  Pursuant to the Court Order of Kandakasi DCJ of 27 December 2023 in OS 22 of 2023, the Second Faction was directed to a file fresh proceeding to assert its interest in the matter.  The Second Faction did not appeal that decision or file fresh proceedings as directed by the Court, which means that the decision of the Court made on 27 December 2023 remains binding.  Instead, the Second Faction chose to file a notice of motion where it sought to vary orders of the Court in a completed proceeding, namely, OS 32 of 2010 (first act), which was in breach of the Court Order of 27 December 2023 (second act).  In so doing and in misleading the trial Court, the Second Faction obtained the purported Consent Order of 7 August 2023.  The purported Consent Order is irregular for these reasons and ought to be set-aside.

46.	The third irregularity committed is this. The Second Faction failed to disclose the division between the 2 factions to the Court, and importantly, of the fact that the First Faction had separate lawyers acting for them in the matter that stemmed out of OS 32 of 2010.  The Second Faction concealed the fact that the fifth respondent and his faction were separated from the First Faction in OS 22 of 2023 and that the First Faction had its own lawyers acting for it which was the first appellant.  They failed to inform the trial Judge that because of these events, that they could not have acted for all the plaintiffs in OS 32 of 2010 but that they could only act on behalf of their own faction.  We must add that this scenario may suggest ‘fraud committed upon the Court’ by the fifth respondent and his lawyer Mr. Issack.

47.	This case may be compared with a recent Supreme Court case of John Jimberi Jr v. Thomas Yetuin (2025) SC2707.  This was a review against a finding of a trial judge who had made exparte orders in favour of the plaintiff.  The orders included granting ownership of a property to him.  Unknown to the primary Judge, the matter and the property which was the subject of the proceeding had been litigated, and a final order had been made earlier in 2010 by another National Court Judge.  Thompson J dismissed the plaintiff’s claim earlier where the plaintiff tried claim ownership of the property.  Her Honour found no impropriety in the transfer of the property from a third party to the defendant who was the applicant in the review.  The plaintiff filed fresh proceeding and did not disclose these material facts to the trial Court which then ruled in his favour without the knowledge of the applicant and the decision of Thompson J.  The Supreme Court upheld the review.  At paras 50, 51 and 52, this Court stated:

50.	Having considered the above, what is glaring to us is the fact that the National Court had earlier, in the 2010 case, awarded ownership of the Property to the applicant; the issue of ownership of the Property was decided by her Honour Thompson J in the 2010 case.  As such, it is apparent that the respondent had commenced the case under review to re-litigate what was a concluded matter.  And by so doing, the primary Judge had made orders in his favour including ownership of the Property; orders that were made that directly conflicted with the earlier orders of the Court in the 2010 case.  It is also apparent to us that the respondent, by his actions, has committed serious abuse of the Court process, that is, the respondent appeared to have deliberately concealed the 2010 case from the Court in the case under review.  If the respondent had issues concerning the Property and the transactions that had taken place then or was aggrieved by the Court’s decision in the 2010 case, he should have appealed to the Supreme Court.  

51.	We also consider that the actions of the respondent may be described as fraudulent in nature.  The respondent appeared to have deliberately misled the primary Judge into making the orders of 12 October 2020 which are now before us for review.

52.	We therefore find clear errors of law on the face of the record, and also, gross errors in the findings of facts.  We also find the decision reached by the primary Judge to be unsustainable in law and reason.  Further, we find the decision to be absurd that if not set aside, that it will not only cause injustice upon the applicant but would contravene another existing binding order of the National Court, which is the decision of her Honour Thompson J made on 11 March 2020 in the 2010 case.

53.	We must state with clarity that the primary Judge was misled on the matter to arrive at the final decision in case under review.  The respondent had the duty to disclose all the material facts before the Court which he had failed to do so.

48.	The fourth irregularity committed is this.  The Second Faction and its lawyer Mr. Issack, having known fully well of the division between the 2 factions, concealed their notice of motion for variation from the First Faction in OS 32 of 2010.  The First Faction consists of members who were part of the former members who had instituted the original proceeding in OS 32 of 2010 with the Second Faction.  The First Faction and its lawyer, the first appellant, were directly interested in the matter, yet the Second Faction did not notify them or serve them with the notice of motion but proceeded with the hearing of the motion and participated in the preparation and signing of the purported Consent Order of 7 August 2024 with the State.  This was a direct breach of Appellants’ rights to be heard which is guaranteed under s.59 of the Constitution.  Again, these facts were also not disclosed by the Second Faction to the Court on 7 August 2024.

49.	The fifth irregularity committed is this.  OS 32 of 2010 was completed in 2013.  The Original Court Order was granted on 24 September 2010.  Subsequent variations were made thereafter; however, the case was completed on 24 September 2010, that is, about 14 years ago before the purported Consent Order of 7 August 2024 was granted.  The same can be said in relation to proceedings OS 23 of 2020 and OS 22 of 2023.  OS 23 of 2020 was concluded on 7 August 2020 whilst OS 22 of 2023 was concluded on 10 February 2023.  Instead, term 2 of the purported Consent Order of 7 August 2024 reads:

2.	Consequent to Term 1 above, insofar as the Consent Order of 6th October 2017 is current and effective to date, until this variation takes effect, the two related proceedings styled OS No. 23 of 2020; Jerry Luru and Albert Mokai on their behalf and on behalf of 8 others -v- Leslie Kari trading as PNG Legal Services and the State, and OS No. 22 of 2023; Paka Kapanda Kili, Yawale Kulu and Jerry Luru on their own behalf and on behalf of 30 others -v- Albert Mokai, commenced by Waira Lawyers on purported instructions from a faction of the same Plaintiffs over the same cause of action in this proceeding, are declared to be improperly and irregularly instituted and are therefore declared null, void and of no effect ab initio.

[Underlining ours]

50.	That order, with respect, constitutes a bizarre scenario where a National Court, in a concluded proceeding, has made an order that declares two other separate National Court proceedings that have also already been concluded, to be declared as “improperly and irregularly instituted and are therefore declared null, void and of no effect ab initio”.  These, in our view, are serious irregularities which must be rectified.

51.	Further, the Doctrine of Finality or Finality of Judgment, in our view, was also breached in this instance.  Cases: Paim Kumbipara Holdings Ltd v. Mountain Catering Ltd (2022) N9473, Atlas Corporation v. Ngangan (2020) SC1995 and Ted Taru and 1 Or. v Pacific MMI Insurance Ltd and Ors (2024) N10948.  

52.	We move on to the sixth irregularity committed.  The Court, in endorsing the purported Consent Order of 7 August 2024, also entered orders against a non-party which is the first appellant.  The first appellant was not a party in OS 32 of 2010.  Some of the orders have serious negative connotations against Mr. Waira and his status as a lawyer.  For example, term 6 of the order states:

8.	Consequent to Terms 1, 2, 3, 4, 5 and 6 above, Mr. Anthony Waira of Waira Lawyers be referred to relevant authorities for further investigation into his alleged fraudulent, criminal and unprofessional conduct in procuring and defrauding the State and the Plaintiffs of their judgment debt in the amount of K8 million.

53.	Mr. Waira was not notified of the notice of motion nor of the intention of the Second Faction that they would seek such an order against him.  The actions of the Second Faction and their lawyers were highly irregular.  No opportunity was given to Mr. Waira to defend himself beforehand.  Mr. Waira also never consented to the purported Consent Order of 7 August 2024 so how can they claim that the Order was entered into by consent of the parties?  The action amounts to breach of Mr. Waira’s constitutional right to be heard under s.59 of the Constitution. 

54.	We will therefore uphold grounds 1(b), 2(a), 3(a) and 6 of the NoA.

55.	These grounds, plus our preliminary finding that the Second Faction had misled the Court to arriving at the decision as it did, are sufficient in our view for us to overturn the purported Consent Order of 7 August 2024.

56.	We also find that the purported Consent Order of 7 August 2024 is not a consent order.  The undisputed facts revealed in this appeal shows that the second, third and fourth appellants, who are the First Faction, separated from the Second Faction which is led by the fifth respondent, prior to and during the time when the purported Consider Order of 7 August 2024 was granted.  The division occurred after proceeding OS 32 of 2010 had concluded, and thus, for the Second Faction to return back to the Court in OS 32 of 2010 under the pretext that Mr. Issack acts for all the former members in OS 32 of 2010 to endorse the purported Consent Order does not make the said order a consent order.  The purported consent order was consented to by only one of the factions thus cannot be a consent order, and the First Faction therefore had every right to challenge the Court Order by appeal under s.14(2) of the SC Act.  Case: Toale Hongiri Incorporated Land Group and Ors v. Wolotou Incorporated Land Group and Ors (2012) SC1201.

RELIEF

57.	The appellants seek the following relief (at pp. 9 of the AB):

1.	Appeal be allowed.

2.	The consent orders endorsed by Court on the 7th August 2024 in OS No. 32 of 2010 Between Paka Kupanda Kili on behalf of himself and 54 others whose names are stated in the Schedule of Plaintiffs – Plaintiffs and Gabriel Yer the Secretary Department of Finance and Planning – First Defendant and Simon Tosali Secretary Department of Treasury Second Defendant and Manasupe Zurenoc Secretary Department of Provincial Affairs Fourth Defendant are quashed and consent orders obtained on the 6th October 2017 are reinstated.

3.	The nonpayment of any money to six (sic) Plaintiffs in the disbursement of K8 million from cheque no. 089920 and cheque no. 089921 is proper as they were not paid as provided by Court orders issued on the 27th December 2023 in OS No. 22 of 2023 Between Paka Kupanda Kili, Yawale Kulu, and Jerry Luru on their behalf and on behalf of 30 others whose names appearing in the Schedule “A” of this Originating Summons as the Plaintiffs and Albert Moka as the Defendant.

4.	The First Appellant was ordered to collect funds for the deceased’s in OS No. 22 of 2023 and was also appointed as an agent of the Public Trustee on the 4th December 2023 and he as the right to do so within the scope of the Court orders and the appointment.

5.	The Second Appellant, the Third Appellant and the Fourth Appellants relationship with Paka Kupanda Kili as their principal Plaintiff is longer (sic) in existence.

6.	An order that the action taken by Minister for Attorney General and Justice Hon. Pila Niningi in revoking the clearance letter issued by the Solicitor General to the First Appellant to excess (sic) to the funds on the 26th May 2023 is set aside and the clearance letter is reinstated forthwith.

7.	The Third Respondent pays the costs.

8.	Any other orders Court deems fit.

58.	We are minded to grant relief 1 and 7.

59.	We decline to grant the balance of the relief.  We find them unnecessary and baseless.  We find that they do not follow as natural consequences for the appeal and the issues that were raised before us.  Making additional orders would also contravene our findings on the Doctrine of Finality which was a premise for upholding the appeal.

WARNING

60.	We observe that the actions of counsel Jastin Issack may be regarded as wanting as a lawyer and an officer of the Court.  We observe that Counsel was duty bound at all material times to assist the Court as an officer of the Court and he appeared to have failed in that regard.  We adopt what the Court in Anthony Hamaka and Ors v. Martin Kombri and Ors (2022) N9916 said in regard to lawyers as officers of the Court:

35.  Mr Kombri, as counsel for the second faction, had been involved in the matter and had the full knowledge of its history including what had transpired shortly before he commenced OS 948 of 2018, that is, in OS 368 of 2018 and of the decision of Kandakasi DCJ.  He expressly acknowledges and states his deep knowledge of the matter, the dispute, and its history, in his evidence.

36.  Despite Mr Kombri’s deep knowledge and familiarity of the matter, he did not, as verified in the transcript of proceeding on 25 April 2019, (i), inform Dingake J anything about the first faction or the plaintiffs, (ii), their involvement in the dispute, (iii), of the past proceedings in the matter, and (iv), of the reasons why the fourth defendant did not see it fit or necessary to join the first faction or the plaintiffs in OS 948 of 2018.  

37.  Mr Kombri, as an officer of the Court, in my view, failed in that regard.  This was a situation where Mr Kombri did not have to or would have required instructions from the client.  It was rather a situation where one would require that a lawyer, as an officer of the Court, would discharge his duty to the Court in the administration of justice on matters in question.  Discharging one’s duty does not include concealing relevant information, but rather, it requires full disclosures such as relevant facts or background of the matter in question.  Mr Kombri, as a lawyer, in my view, owed that duty to the Court, namely, to disclose fully all information that were relevant or necessary in regard to the matter, to equipped the Court to better or fully understand the case and of the existing disputes beforehand, before requesting it to endorse the Consent Order.  That same duty and responsibility applied to the Solicitor General who signed off on behalf of all the defendants in OS 948 of 2018. [Underlining ours]

61.	There may be serious breaches in that regard by the actions of Mr. Issack when counsel presented himself before the Court on 7 August 2024.  This appeal could have been avoided had counsel exercised diligence and care by disclosing all the material facts to the trial Judge on 7 August 2024.  We observe these as lacking from counsel by his actions.  However, we are not making any findings on the conduct and actions of counsel.  

62.	We also wonder how it was possible that the two lawyers, namely, Mr. Issack and Mr. Geita who was the Solicitor General at the time, could sign a consent order against a third party which is the first appellant without ever considering the fact that the third party (Mr. Waira) was not a party in OS 32 of 2010 and also that he was never afforded an opportunity to be heard before the purported consent order, which was a final order, was presented to the Court to endorse.

63.	We make this observation to sound a stern warning to Mr. Issack and also to the fifth respondent Paka Kupanda Kili, to refrain from such behaviour or practices.  

64.	We also observe in general that both counsels appear to file proceedings after proceedings in the National Court chasing payments for their clients’ funds, and that in the process, may have failed to follow proper court practice and procedures.  This is another warning to both counsels to observe and follow the due processes of the Court.  Serious consequences must follow if counsel continue to breach the processes; serious consequences may include orders to hold them liable for contempt of court or remove them as lawyers for the parties and referring them to the Lawyers Statutory Committee for prosecution under the Lawyers Act and Professional Conduct Rules.  Case: Karen Nugi T/A Pang Legal Services v. Komap Mapulgei Business Group Inc. and Ors (2025) N114423.

ORDERS OF THE COURT

65.	We make the following orders:

1.	The appeal is upheld.

2.	The Consent Orders endorsed by the Court on 7th August 2024 in OS No. 32 of 2010; Between - Paka Kupanda Kili on behalf of himself and 54 others v. Gabriel Yer, Secretary Department of Finance, Simon Tosali Secretary Department of Treasury, and Manasupe Zurenoc Secretary Department of Provincial Affairs are quashed and set-aside, and consent orders obtained on the 6th October 2017 are reinstated.

3.	The third respondent shall pay the appellants’ costs of the appeal which may be taxed if not agreed.

________________________________________________________________
Lawyers for the second, third and fourth appellants: Pokea & Associates
Lawyer for the first, second, third & fourth respondents: Solicitor General	
Lawyers for fifth respondent: Lawama Lawyers