Lohoro & Othrs v PNG Forest Authority & Frontier Holdings [2004]
Dispute over the extension of a Timber Permit
Logging companies mentioned in this document:
N11332
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS (JR) NO. 403 OF 2004
BETWEEN:
JAMES HARIVA LOHORO
First Plaintiff
AND:
ERE KILAVI INCORPORATED LAND GROUP
WITHIN THE VAILALA TRP AREA
Second Plaintiff
AND:
KORE EVERE
Third Plaintiff
AND:
LAULA MEHAU INCORPORATED LAND GROUP
within THE VAILALA TRP AREA
Fourth Plaintiff
AND:
KILALA KARIKARA
Fifth Plaintiff
AND:
AVOILA CLAN INCORPORATED LAND GROUP
WITHIN VAILALA TRP AREA
Sixth Plaintiff
AND:
JOE MERE
Seventh Plaintiff
AND:
KAO HARUIPI NO. 2 INCORPORATED LAND GROUP
WITHIN THE TRP AREA
Eighth Plaintiff
AND:
MORGAN MUKARI
Ninth Plaintiff
AND:
MIARO CLAN INCORPORATED LAND GROUP
WITHIN THE VAILALA TRP AREA
Tenth Plaintiff
AND:
EVAN EVAROPO
Eleventh Plaintiff
AND:
LULU CLAN INCORPORATED LAND GROUP
WITHIN THE VAILALA TRP AREA
Twelfth Plaintiff
AND:
IVAN KEO URUMA
Thirteenth Plaintiff
AND:
MIHIRE OUKA INCORPORATED LAND GROUP
WITHIN THE VAILALA TRP AREA
Fourteenth Plaintiff
AND:
MORGAN SARE
Fifteenth Plaintiff
AND:
ALUVE INCORPORATED LAND GROUP
WITHIN THE VAILALA TRP AREA
Sixteenth Plaintiff
AND:
ANDREW MUKARI
Seventeenth Plaintiff
AND:
WEE-4 INCORPORATED LAND GROUP
WITHIN THE VAILALA TRP AREA
Eighteenth Plaintiff
AND:
PAPUA NEW GUINEA FOREST AUTHORITY
First Defendant
AND:
MICHAEL OGIO, MINISTER FOR FORESTRY
Second Defendant
AND:
FRONTIER HOLDINGS LIMITED
Third Defendant
WAIGANI: DINGAKE J
06 JUNE 2025
JUDICIAL REVIEW – plaintiff granted leave for judicial review – decision on
grant of leave appealed by respondent – appeal not prosecuted – matter referred to
mediation resulting in the decision on granting of leave losing its utility –
mediation based on different issue not subject of judicial review proceedings which
leave was granted
JUDICIAL REVIEW - issues for determination - whether plaintiffs entitled to
premium payments - Whether premium payments made by the Third Defendant to
landowner companies up until 2008 were in compliance with the agreements
between Third Defendant and those landowner companies - Whether Plaintiffs are
to pursue the relief sought in these proceedings - Whether Plaintiffs have standing
to maintain the proceedings - Whether the other parties are to be joined in this
proceedings - Plaintiffs are not entitled to any premium payments made by Third
Defendant to Plaintiff pursuant to timber permit 2- 16 – payments made by
Frontier Holdings Ltd (FHL) to Landowner companies up until 2008, were in
compliance with agreements between Third Defendant and Landowner Companies
– Plaintiffs ill-suited to pursue relief sought in proceedings -plaintiffs have no
standing to file this proceedings - certified landowner companies can join in
proceedings - Plaintiffs not entitled to relief they seek
Cases cited
Simon Mali v The State [2008] PGNC 219; N3442
Counsel
Mr. Anave Megaraka for the plaintiffs
Mr. Emmanuel Isaac for the first defendants
Mr. Bill Frizzell for the third defendant
JUDGMENT
1. DINGAKE J: INTRODUCTION: This matter has a tortuous history. The
Plaintiff commenced proceedings on the 28th of July 2004, seeking to review the
decisions of the First and Second Defendants.
2. Over twenty (20) years later the matter remains unresolved.
3. The Plaintiff was granted leave on the 6th of April 2005. The Respondents
being unhappy with the decision to grant leave appealed to the Supreme Court
against the granting of leave. The appeal was not prosecuted for close to eight (8)
years. In 2013, the Plaintiff unsuccessfully sought to dismiss the appeal for want of
prosecution.
4. The record shows that after the granting of leave a Notice of Motion filed
under Order 16 Rule 5(1) of the National Court Rules (NCR) was not filed within
the time prescribed by the Rules or within reasonable time after the granting of
leave.
5. The above may not be of moment because the matter was referred to
mediation. Referring the matter to mediation appears to have changed the issues,
the subject of the leave application, with the result that the original relief sought
appear to have lost any utility. Further, the issues or dispute now appears to be
between the Plaintiffs and the Third Defendant.
6. In terms of the Originating Summons filed on the 28th of July 2004, the
Plaintiffs sought to review the decision of the Minister of Forestry, made on the
25th of July 2002, to extend the Timber Permit (TP) 2 – 16 for the Vailala Block 2
and 3 for another ten (10) years which was issued on the 24th of June 1992 and
expired on the 24th of June 2002.
7. The mediation proceedings resulted in five (5) legal issues/questions being
referred to this Court for determination. This judgment pertains only to those
questions.
8. The legal issues are as follows:
i) Whether the Plaintiffs are entitled to any premium payments made by
the Third Defendant to landowner companies pursuant to timber
permit 2-16 up till 2008;
ii) Whether premium payments made by the Third Defendant to
landowner companies up until 2008 were in compliance with the
agreements between the Third Defendant and those landowner
companies;
iii) Whether the Plaintiffs are to pursue the relief sought in these
proceedings?
iv) Whether the Plaintiffs have standing to maintain the
proceedings;
v) Whether the other parties are to be joined in this proceedings;
9. In answering the questions that fall for determination, I have considered the
totality of the evidence filed of record and also given effect to Rule 13 of the ADR
Rules.
10. I turn to answer the questions referred to in paragraph 8, above. WHETHER THE PLAINTIFFS ARE ENTITLED TO ANY PREMIUM PAYMENTS MADE BY THE THIRD DEFENDANT TO LANDOWNER COMPANIES PURSUANT TO TIMBER PERMIT 2 – 16 UP UNTIL 2008 11. On the evidence it is clear that TP 2 - 16 was originally granted on or about the 24th of June 1992 for ten (10) years. In terms of Clause 4.4.5 of TP 2 - 16 the Third Defendant was to make premium payments to landowner companies. The Timber Permit (TP) 2 – 16 was amended on the 5th of June 2008, was effective from the 25th of July 2002 to the 24th of July 2037. 12. On the evidence filed of record it is incontrovertible that TP 2 – 16 required the Third Defendant to pay landowner companies or certified landowner companies the premium payments. 13. It is not in dispute that the Plaintiffs herein are not incorporated pursuant to the Companies Act of 1997 or are they certified by the First Defendant (PNGFA) as landowner companies. 14. It is common cause that TP 2 – 16 prohibits premium payments to individuals and incorporated land groups. 15. On the evidence, the answer to the first question is in the negative, namely, the Plaintiffs are not entitled to any premium payments made by the Third Defendant to the Plaintiff pursuant to timber permit 2- 16. 16. On the totality of the evidence before this Court, I am satisfied that TP 2 – 16 imposes no liability on the Third Defendant to pay the Plaintiffs any premium. W H E T H E R P R E M I U M PAY M E N T S M A D E B Y T H E T H I R D DEFENDANT LTD TO LANDOWNER COMPANIES UP UNTIL 2008 WERE IN COMPLIANCE WITH THE AGREEMENTS BETWEEN THE THIRD DEFENDANT AND THOSE LANDOWNER COMPANIES
17. The evidence with respect to the question posed above is captured in
Affidavit of Andew Tiong. At paragraph 23 Mr. Tiong states that:
• TP 2-16 was originally granted on or about 24th of June 1992 for ten
(10) years (“TP 2-16”) (annexure “B” to the Tiong Affidavit on 8th
June 2016);
• Clause 4.4.5 of TP 2-16 shows that FHL is to make premium
payments to landowner companies;
• FHL commenced operations in late 1996;
• A Forest Management Agreement was entered by PNGFA and ILGs
on 18th December 1995 (annexed “B” to the Affidavit of Francis
Hahepa sworn on 20th November 2015 (“FH affidavit”)) which was
expressed to be for a period of fifty (50) years;
• On 5th June 2008, the amended TP 2-16 was issued, said to be
effective from 25th July 2002, expiring on 24th July 2037 (“the
amended TP”) (see annexure “C” to the Tiong Affidavit on 8th June
2016) in which in terms of amended TP no payments were to be paid to
certified landowner companies but rather in accordance with schedule 3
to the amended TP.
18. I have not found any evidence filed of record especially by the Plaintiffs that
disproves the above factual averment. I am compelled to conclude, on the
evidence, that the payments made by Frontier Holdings Ltd (FHL) to Landowner
companies up until 2008, were in compliance with the agreements between the
Third Defendant and the Landowner Companies.
WHETHER THE PLAINTIFFS ARE TO PURSUE THE RELIEF SOUGHT
IN THESE PROCEEDINGS
19. In this matter, the Plaintiffs claim to represent the collective interests of 124
incorporated land groups. Paragraphs 2 and 3.1 and 3.2 of Order 16 Statement
record that:
“2. Description of Plaintiff/Applicants:
JAMES HARIVA LOHORO: ERE KILAVI Incorporated Land Gorup within
the Vailala TRP Area; KORE EVERE; Laula Meahu Incorporated Land
Group within the Vailala TRP Area; KILALAL KARIKARA; AVOILA
CLAN Incorporated Land Group within the Vailala TRP Area; JOE
MERE; KAO HARUIPI NO. 2 Incorporated Land Group within the
Vailala TRP Area; MORGAN MUKARI, MIARO CLAN Incorporated
Land Group within the Vailala TRP Area; EVAN EVARAPO; LULU
CLAN Incorporated Land Group within the Vailala TRP Ara; IVAN KEO
URUMA; MIHIRE OUKA Incorporated Land Group within the Vailala
TRP Area; MORGAN SARE; ALUVE Incorporated Land Group within
the Vailala TRP Area; ANDREW MUKARI; WEE-4 Incorporated Land
Group within the Vailala TRP Area.
Each of the above Plaintiffs is a leader of clans of landowners in the
Vailala TRP Area or is an incorporated land group within the Vailala
TRP Area. The decision to extend the Timber Permit to Frontier
Holdings is a decision which had and continues to have a significant
effect on the day-to-day lives of the clans living within the Vailala TRP
Area. Further, they are persons to whom royalties would or should be
payable pursuant to the logging and sale of timber from land within the
Vailala TRP Area.
3.1 The Plaintiffs are leaders of clans and are incorporated land groups
within the Vailala TRP Area.
32. The Plaintiffs represent the collective interests of the 124
Incorporated Land Groups, the clans who are the beneficial owners of
the Incorporated Land Groups and all the people living in the Vailala
TRP Area (the Resource Owners) within the Vailala Block 2 and 3 areas
in the Gulf Province, which area consists of 305,500 hectares of
rainforest (the Permit Area).”
20. However, the Originating Summons does not suggest that this is a
representative action – and even if I were to accept that it is a representative action,
I have not seen or been referred to any written consent or authority to act signed by
the persons named consistent with the authority Simon Mali v The State [2008]
PGNC 219; N3442.
21. Additionally, on the uncontradicted evidence of Mr. Barry Kiwai sworn on
th
the 26 of April, 2017 (Doc No. 133) it does not seem that some of the Plaintiffs
are incorporated in accordance with the Land Groups Incorporation Act or the
Land Registration Act. This finding applies, in particular, to the Fourth, Eighth,
Tenth, Fourteenth, Sixteenth and eighteenth Plaintiffs in these proceedings.
22. Given all that I have said in paragraphs 20 and 21 above, I hold that the
Plaintiffs are ill-suited to pursue the relief sought in the proceedings.
WHETHER THE PLAINTIFFS HAVE STANDING TO MAINTAIN THE
PROCEEDINGS
23. And as a consequence of the same considerations captured in paragraphs 20
and 21, I hold that they have no standing to maintain these proceedings.
WHETHER OTHER PARTIES ARE TO BE JOINED IN THESE
PROCEEDINGS
24. The law on joinder is that the Court may allow joinder of parties if such
joinder is necessary for the effective determination of the matter before Court.
25. In this case, the other entities who would conceivably have a case to be
joined, given that the issues now at stake are those that arose in mediation, would
in my considered opinion be the certified landowner companies. These companies
are referred to in the Affidavit of Mr. Alex Teo (Doc. No. 20).
26. Given the answers I have given for the questions that fell for determination,
it seems to me that the Plaintiffs are not entitled to the relief they seek.
27. On the issue of costs, the Plaintiffs and Third Defendant have not asked for
costs. The First Defendant prays that it be ordered to bear its own costs as ordered
by the Supreme Court in the appeal arising from this appeal.
28. Costs are the discretion of the Court. In this case, it seems proper and fair
that each party pay its own costs. I will therefore order that each party pay its own
costs.
__________________________________________________________________
Lawyers for the plaintiffs: Ona Lawyers Lawyers for the first defendant: Emmanuel Lawyers Lawyers for the third defendant: Warner Shand Lawyers
