Sakora blasts Kua in court house

December 31, 2009- The National 

By JULIA DAIA BORE

PRESIDENT of the PNG Law Society, Kerenga Kua, was blasted yesterday by Justice Bernard Sakora in the case involving Yama Security Services (YSS) and Motor Vehicle Insurance Limited (MVIL).
Justice Sakora told him before a packed courtroom that he (Kua) was – for the second time – “being disrespectful of the court” by appearing before the court in a matter that was an ex parte application. 
He told Mr Kua he and his client had no standing in the case.
The judge’s comments followed soon after Mr Kua rose and introduced himself after counsel of parties in the proceeding YSS and MVIL presented themselves.
Mr Kua said he was present to represent the government debtor.
Justice Sakora, however, intervened, telling Mr Kua: “And how did you manage to do that?”
To which Mr Kua replied: “We (he on behalf of MVIL) have applied to stay that order.” 
Justice Sakora was not impressed, telling Mr Kua “you are the president of the PNG Law Society and should know the law” in reference to ex parte applications. 
The judge had last Thursday grant leave to YSS to garnishee MVIL accounts held at the Bank South Pacific. 
The matter yesterday was for garnishee notice absolute to be heard before Justice Sakora. 
A garnishee notice absolute is the final court hearing before it orders for the money to be paid direct from the bank account.
However, that did not happen yesterday because the new counsel representing BSP, Australian barrister Greg Egan, made his presentation in court yesterday; taking issue to the garnishee notice. 
He told the court he had been asked to take over the representative counsel role for BSP only on Christmas Day (last Friday) and flew in from Australia yesterday.
He advised the court he supported Mr Kua and submitted to have both their objections in favour of his client (BSP) heard as a dispute trial. Justice Sakora allowed the matter to be argued in two weeks time from Jan 13.
In an affidavit filed by Mr Kua last week, he said MVIL had made payment of K7,617,301.32, but the payment was made via BSP account to the appointed debt collector with the Deloitte Komatsu Ltd.
However, this information still remains within the court files and Mr Kua had not been allowed to be heard as Justice Sakora had stressed that Mr Kua’s client had “no standing” being heard.
MVIL owes YSS K7,617,301.32 in damages for breach of contract. 
MVIL had tried to fight off this damage claim, and had even gone to the Supreme Court but had failed. 
Mr Yama believed that the latest moves were aimed at preventing him getting what was rightfully his company’s.

Put national interest first: Judge

November 19, 2009- The National 

JACOB POK

A JUDGE has told Southern Highlands province landowners that the PNG LNG project was of significant national interest, and development on the project including development forums must proceed.
Justice Les Gavara-Nanu told landowners from the Gobe project area on Wednesday they should go back home and take part in the licence-based benefits sharing agreement (LBBSA) forums.
Justice Gavara-Nanu told them that if they were not satisfied with the outcome of theLBBSA, they were at liberty to return to the court. 
He declined specific orders sought by the landowners relating to outstanding memorandum of agreement funds allegedly owed by the State.
The landowners had argued that they would not participated or be party to any dealings in the LBBSA forum currently underway in the project area unless outstanding landowner issues were dealt with.
Counsel for the landowners, John Poro, told the court that his clients had refused to be party to the signing of the Kokopo umbrella benefits sharing agreement (BSA) because some of their requests for projects in their area were not considered in April.
He said his clients requested for two projects; for a road from Semberigi to Kisenepoi in Ialibu, and the upgrading of the Semberigi Health Centre, but these were not considered during the UBSA forum.
He said therefore, they would not attend the LBBSA forum until the issues were properly settled. 
Mr Poro, in a letter issued by the Minister for Petroleum and Energy William Duma on Oct 29 to his clients, said the LBBSA forum would discuss these issues raised in the Kokopo BSA forum. 
Mr Poro said if that was the case, then they wanted the court to issue directions for the parties to meet and come to a solution before attending the LBBSA forum. 
Lawyers for DPE and ExxonMobil opposed this, saying the forum would discuss these issues.
The judge agreed, and urged the landowners to go back home.

Landowner disputes only about money, says judge

November 5, 2009-The National 

By JACOB POK

NATIONAL Court judge Justice Ambeng Kandakasi yesterday blasted Southern Highlands landowners, saying they seem to be running to court for money and nothing else.
“All landowner issues that are brought to court to seek remedies only involve money. 
“People are interested in accessing funds and not other issues like damages caused to the environment,” Justice Kandakasi said.
He said this while refusing an injunction sought by a landowner group from Southern Highlands province which was seeking to stop development forums associated with the PNG LNG project from proceeding.
Justice Kandakasi referred to other similar landowner cases that were brought to court concerning memorandum of agreement (MoA) and special support grant (SSG) funds, and equity and royalty funds. 
Some of these groups have threatened to stop the LNG project if they are not paid millions of kina which they say the Government owes them.
Referring to them, the judge said these people (who run to court) should be concerned about the well-being of the people and how they would be affected by the project in the years ahead, and not just their own interest.
The Lobi Hukuwa Epapalanto Landowner Association of Juha, the plaintiff in the proceedings, was seeking to restrain the defendants, ExxonMobil, the Department of Petroleum and Energy (DPE) and the State from conducting the licence-based development forums claiming that they had not complied with section 47 of the Oil and Gas Act.
Lawyer Marley Nandi argued that on Sept 25, the court granted an interim ex parte order in their favour. 
But on Oct 14, Justice Bernard Sakora discharged the interim orders on the basis that the court had no jurisdiction to determine issues relating to ownership of customary land.
Mr Nandi argued that Justice Sakora had ruled that the defendants had not complied with section 47 of the Oil and Gas Act.
He added that Justice Sakora was satisfied that there were no social mapping and landowner identification carried out by the defendants as required by the Act.
The defendants’ counsel, Greg Egan, responded that the court also made orders under section 169 of the Oil and Gas Act for the plaintiffs to seek determinations from the Minister for Petroleum to consider them as landowners but that did not happen.
Mr Egan argued that there was no positive outcome on the part of the plaintiff from the meeting held with the minister and therefore, the injunction should be refused.
Justice Kandakasi said he was satisfied that the plaintiffs had not complied with section 169 of the Oil and Gas Act, and refused the injunction sought.

Court throws out Juha land case

October 26, 2009- The National 

JACOB POK

TWO interim orders that restrained the Juha landowners of Southern Highlands province from carrying out meetings and development base forum since last month was discharged by the Waigani National Court last Thursday. 
The court found that it had no jurisdiction to further deal with the matter and advised the plaintiffs, Lobi 1 Hukuwa Epalanto Association, to seek other alternatives to resolve the landowner identification issue. 
The matter first went before the court early last month when the plaintiffs took the Department of Petroleum and Energy (DPE) and the State to court over failure to carry out proper landowner identification and social mapping in the Juha project areas. 
They also sought restraining orders and successfully restrained groups purporting to be Juha landowners from carrying out meetings and participating in development forums. 
The plaintiffs based their arguments on section 47 and 48 of the oil and gas act, questioning DPE and the State on whether the procedures stipulated under the act had been complied with or not.
The plaintiffs argued that section 47 which talks about procedures of social mapping and landowner identifications had not been complied by DPE and the State.
They also sought for declaratory orders for the court to identify them as legitimate customary landowners of Juha. 
But DPE argued in court that the department had undergone land identification studies by assigning an anthropologist to carry out the job in the Juha project areas.
DPE further argued that the plaintiffs had gone to court prematurely without following proper legal procedures. 
However, the court found that the plaintiffs had also raised serious issues concerning landowner identification and social mapping on the project area.
Presiding judge, Justice Bernard Sakora found that the DPE did not provide sufficient evidence in court to prove that social mapping and landowner identification had been carried out in Juha although it argued that the studies were undergone.  
Justice Sakora said DPE did not name the anthropologist who carried out the studies and only described the person as an expert during the proceedings. 
The judge said he was satisfied that there was no evidence before the court to prove that social mapping and landowners identifications were carried out by DPE, adding that there was still a serious issue needed to be dealt with.
He said, however, the National Court did not have any jurisdiction to further deal with the issue and therefore, he ordered that the restraining orders be discharged and advised the plaintiffs to seek other alternatives such as the local land court to pursue the matter.

Police brutality becoming rife

October 14, 2009- The National 

By JACOB POK

POLICE officers beating up ordinary people under the disguise of enforcing law and order were becoming too frequent and widespread, a National Court judge said.
Justice Panuel Mogish, made this observation recently when jailing a police officer for 18 months with hard labour for unlawfully assaulting ordinary people when demanding compensation about a personal matter.  
Noncent Onge of Mendi, Southern Highlands province, was charge under section 390 of the Criminal Code for assaulting people and demanding compensation.  
He was a policeman based in Port Moresby at the time he committed the offence.
The court sitting in Port Moresby was told that on the night of Oct 7, 2005, Onge was assaulted in a fight with fellow Southern Highlanders and had demanded compensation. 
The court was told that compensation was agreed on, to be paid after the mourning of a dead relative at the time.
However, Onge and some policemen went to Erima and assaulted people who were selling their goods near a trade store but left when they were paid K1,000.
Onge was arrested soon after and charged when one of the victims reported the matter to the police.
The court found that Onge had behaved in an unprofessional manner.
“It is now becoming a trend in this country to see policemen involved in illegal activities,” Justice Mogish said.
“It is a recipe for disaster and ultimately leads to a state of anarchy.”
The judge said that the “very serious and aggravating circumstances in the matter was the use of police force to settle personal matters.”
“The police force is not owned by you or any individual. 
“It is collectively owned by the people of this country. 
“Police officers are not above the rule of law.”
Justice Mogish said he was mindful that the accused served in the police force for 11 years and was a first-time offender. 
He said a longer jail term would ruin his career and would affect his family, adding that a short and sharp sentence would be appropriate. 
Justice Mogish also ordered that the accused be transferred to Mendi prison to serve his sentence.