Transcript of Proceedings Commission of Inquiry into the Department of Finance [Part 10]

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    Transcript of Hearings by the Commission of Inquiry into the Department of Finance, July 2009

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  • TRANSCRIPT OF PROCEEDINGS Commission of Inquiry Department of Prime Minister & NEC P O Box 782 WAIGANI, NCD PAPUA NEW GUINEA Telephone: (675) 323 7000 Facsimile : (675) 323 6478




    Mr Maurice Sheehan Chairman & Chief Commissioner


    MONDAY, 6 JULY 2009 AT 10.05 AM (Continued from Wednesday 10 June 2009)


    MR KASSMAN: Chief Commissioner, we have five matters listed for this morning. Some of the matters we had to deal with administratively and we can run through them fairly quickly. The first matter, the matter of K K Kuni Building Constructions Ltd and John Kekeno –v- The Southern Highlands Provincial Government, the only person – this is a matter that has been dealt with – the final person of interest is the Honourable John Kekeno, who is a current Member of Parliament. Mt Kekeno did attend, appear this morning, along with his lawyer Mr Mali Nandi. Mr Kekeno wishes tq have his statement reduced to writing and he has some parliamentary duties he needs to attend to also this morning and for the rest of this week. He has undertaken to provide the Commission with written response by tomorrow and it is at that stage that we will make the assessment whether it is necessary to call him. I did advise Mr Kekeno that it would also be his opportunity to give evidence in relation to this matter in view of the fact that fairly lengthy statements have been made by othet persons of interest, John Ayako and Mr Bob Marley himself and he has made him aware of that. So let us move forward to the next two matters. We have a number of witnesses here, Mr Gomara will now proceed with the matter of Lynnette Malu & 48 others

    THE CHAIRMAN: Yes, Mr Gomara?

    MR GOMARA: Thank you Chief Commissioner, for the matter of Lynnette Malu we have twqo witnesses to call this morning. One is Mr Benny Malu and Mr David Keta. We will start off with Mt Malu. If Mr Malu could be called?

    THE CHAIRMAN: Yes, very well. Sit down please Mr Malu.

    MR BENNY BALEPA MALU, sworn: XN: MR GORUA Q: If you could state your full name for the record?THE CHAIRMAN: Just remain seated, if you would just give your evidence seated? That is right. A: Thank you Mr Commissioner and members. Q: Your full name please is? A: My name is Benjamin Malu. Q: Benjamin Malu? A: Benjamin Balepa

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  • Malu, same person. Q: Yes? MR GORUA: Thank you Mr Malu. Mr Malu, you certainly are aware of the reasons why you are appearing before the Commission and it is a matter involving a claim, certainly by Lynette Malu in respect of a police raid. A: Yes, I am aware of that. Q: Mr Malu in regard to this police raid, documents show that you actually filed a claim under your name in the National Court, is that correct? A: Yes, that is right, 266 of 1991. Q: 266 of 1991? Sorry, Mr Malu you need to sit closer to the microphone. A: Thank you. Q: That matter went to full trial and National Court awarded you about K35,000? A: That is right. Q: That is in respect of this police raid claim? A: That is right. Q: You filed proceedings as an individual? A: That is right. Q: This particular claim by Lynnete Malu, documents show that they say — A: Yes, she is my wife. Q: Lynette Malu is your wife? A: Yes. Q: She filed proceedings in respect of the same police raid, is that correct? A: That is right. Q: Are you also a plaintiff in the Lynnette Malu — A: Yes, I was a businessman and I was a plaintiff and it was not double claim. I was a businessman and I was not recognized and I know nothing about law and procedures of National Court Rules and whatever and the statement of claim. The Commission of Inquiry must know that I was represented by a practical lawyer, Kenneth Unda. He does not base at Kagua-Erave. Q: Sorry, what is the name of that lawyer? A: Kenneth Unda. Q: Kenneth Unda? A: Yes. He is not based at Kagua-Erave. Kenneth Unda through Martin and the lawyers. Q: Sorry? A: Martin and the lawyers. Q: Martin and the lawyers? A: I do not know, he is not around here. Q: Sorry, these lawyers represented you in the proceedings which you individually filed or? A: Not my individual file. Q: That is the one that went through and you are saying that you were also a plaintiff in the Lynnette Malu proceedings? A: That is right, but I claim what I did not claim in there. Q: Sorry? A: The loss in business was not shown in the statement of claim properly according to the National Court rules. That was, Maurice Sheehan was handing over that case. I was only paid K35,000. [10.10 a.m.] THE CHAIRMAN: You are saying that I handled that, judged this matter? Which one was this, Lynnette Malu or your pro case? A: No my claim. I know nothing about law and you told me to sit down three times and I did not sit down and you said, I can go behind the bars to think and recall. Q: Did I? A: To Bomana. I stood there and— Q: What was the name of your claim again? A: This one? Q: Did I as a judge deal with you as Benjamin Malu? A: Yes, and Benny Balepa and Benjamin Malu is the same name in the brief way. That is my company name for Southern Highlands — Q: I remember a matter Benny Balepa, was that you? A: That is right, that is me. Q: That is the one you are talking about? A: Yes. I stood there three times and you told me to sit down. One time, you said, “sit down,” when you announced the K35,000 but I did not sit down, I insisted and I stood there. If you can recall Number 3 court room. Q: I do not remember, no. A: You told me to sit down and I did not sit down. Q: This was after the judgment was it? A: Yes, after liability was admitted at Mendi on 11-13 April 1994 and you were trying to award me. Q: I award you how much, K35,000? A: K35,000.

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  • Q: After that you stood up and I told you to sit down? A: Yes, you told me three times to sit down and I did not sit down and you said, “I will refer you topolice and police can carry you over to Bomana cell.” Q: I see. A: Because I was not satisfied with the — Q: I see, you were not satisfied with K35,000? A: That is right, I was a businessman. My lawyers did not do it properly. Q: So we are back to a situation where you are asking the questions that you then became a party to your wife’s proceedings? A: That is right, because I was a businessman and I have revealed an action and properly appear.That is what the lawyer advised me, the statement of claim and my business losses. Q: All right, Mr Malu we will continue on this. I do not see a conflict at this point. But carry on. MR GORUA: Mr Malu, in regards to your claim you say that you are a businessman and actually thedecision was published in respect of your matter, the matter which you filed and court actually tookinto account of what you claim as losses in respect of business? For instance loss of tradestore, thecourt awarded you K25,000. A: That is right. A: Yes, that one is not appear there. The K25,000 does not appear back here. I claimed what I did not claim here and it is proved in the statement of claim and the State is going on with this thing formany years, this is reaching 20 years. Q: Mr Marley was the lawyer who represented you? A: Yes, he is registered that one. The previous one was registered by Martin Enda and Kenneth Unda. My business was not recognized in that one because they thought I had only a tradestore and acouple of goods in there or something. But I was a businessman, I lost trucking business, I lostcoffee buying, my …………… I have got cheque butts here. I have got previous records here, I willprove that I claim what I claim because actually I own those things. Q: Then you joined Lynnette Malu, your wife to institute this claim again? A: That is right as another claimant. Q: That is the second claim which you made? A: Yes, that is right. So that is what Mr Nandi said, you can claim what you did not claim. I am a lawyer and I will put it out but those things that were verified was not mentioned here. I claimed forNational Works contractor, a coffee buyer, processor. Q: So Mr Nandi told you, you can make a claim again? A: Yes. Q: Did you write a letter to advise him in that regard or? A: I have written a letter on 31 October 1996 and explained it. It did not hide that one. Q: Do you have a copy which you can—? A: I think you saw me probably the other time with the other lawyer. Not you but the other guy whoserved me this letter. Q: Certainly, Mr Mali will be of assistance, we will certainly call Mr Mali. So you joined your wifeLynette in these proceedings and then made, this time what you say you made a claim which — – A: Which I did not like. Those claims were for my business losses and I have got black and white and Mr Mali is a lawyer by profession and he cannot risk his life, I cannot risk my life in this thing. This thing was going on for 20 years, disputing same thing because of allegations. Now we will provewhat — THE CHAIRMAN: I am sorry, 20 years what? A: 20 years now because of same thing that turned over from Court to Court, Criminal Court toSupreme Court, National Court, they are twisting me around all these years but I am always a winnerbecause I tell the truth and I base on the truth. I never collect this K10,000 and K25,000 for …………no. I claim my losses. This was when ………….. was there I settled the writ. THE CHAIRMAN: Can you just keep on track. X10:15amZ MR GORU$: Mr Malu, in this Lynette Malu’s case, from the documents we have thematters actually did not go to, like in your case, did not go to full trial but the matter was settled outof court for K4.5 million.

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  • Is that that correct? A: That is right. Q: Did you ever actually see the Solicitor General or the Lawyer at the Solicitor General? A: We have been cross fighting this thing for 19 years. How can I go get it free there. They havegone to rewind this claim. Q: My question is, did you ever personally meet with a lawyer from the Solicitor General’s office or the Solicitor General himself in trying to settle the claim out of court? A: No they were cross fighting going on with professional people, professional consultants and accountants and lawyers. It was done professionally. Q: Who was the lawyer representing you and Lynette Malu in this? Is it Mr Nouairi? A: That time CCS Anvil and Mr Nouairi was acting under that law firm it was done by professional consultants and professional laywers. THE CHAIRMAN: By whom? Would you have the names of those people? A: Yes, Jack Nouairi Q: Pardon? A: Jack Nouairi was a lawyer at that time. Q: I see, and you say other accountants. Who were the accountants? A: CCS Anvil. Q: CCS? A: Anvil, one of the companies but gone out of this place, Papua New Guinea, already gone. MR GORUA: CCS Anvil? A: Yes, he was working under there. Q: So you never took part in say talking with the Solicitor General or the lawyer to settle claim? It was —? A: They were funded and did the job in a professional way. They used to stop me there, so I never go there. Q: You never actually met the Solicitor General or the lawyer? That is my question? A: They just stopped me from there and only it was done. Q: So it was Mr Nouairi and as you say CCS Anvil who were taking the lead role? And the figure K4.5 was — THE CHAIRMAN: K4.5 what, million? MR GORUA: K4.5 million. Who came up with that figure? A: They came with a – it was calculated properly and lawyers have done that. Q: So you are saying lawyers calculated that figure? A: Yes, so you want explained then I will bring the lawyer across here, he can come and explain. But I do not know where he resides and I did not get him, I did not know, he is out somewhere. Q: Mr Malu, in the statement of claim filed by Lynette Malu, Lynette Malu claimed about K900,000,that is in the statement of claim and the rules of the court say whatever you ask for in the summonsis what you are going to get. How did K4.5 million come about? A: Yes, we have been waiting for a long time and State kept on denying and they gave five daysdefence and they kept on saying this and that and what do you think, can you tell me that if I was abusinessman and somehow economics are lost. Q: I understand that, but you as a client it is your job to tell your wife, look this is what I have lost and this is what earned and it is a lawyer’s job or whoever is representing you to write it in the summons so it is there for the court to see and if you prove it and you get it. But what I am trying tosay is, in the summons Lynette Malu asked for K900,000. THE CHAIRMAN: That was for you losses as well. MR GORUA: That is including your losses as well. A: That is right, but I was businessman and I did not claim what I claimed in WS266 of 1995 and

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  • Iwas not shown properly, was not appealed properly in statement and print and but my lawyer isthere, Mr Manei and — Q: Mr Malu, there is the point that I am trying to make. I understand you are a businessman and thepoint I am trying is, you will tell your lawyer, look this is what I have lost and all this, and it is foryour lawyer or whoever is representing you to put in the summons and the rules say that if you do not ask for whatever it is not in the summons, the court will not give you what you did not ask for.In this case, Lynette Malu, that is including you, you ask for K900,000 and it was settled for K4.5million. So I am asking you how did the K4.5 come up about. Was that your instructions to thelawyer or did the lawyer came up with that figure? [10:20 am] A: Lawyer came up with that figure because he came around with— Q: Who is that lawyer, Mr Nouairi or? A: Nouairi and Jerry Kamas or? THE CHAIRMAN: You did not tell him that you wanted K4.5 million? A: No, I did not tell them, they calculated that in a professional way. I never asked for that. Q: So you only lost K900,000, according to you, but you got K4.5 million? A: Yes, because I was contracted in National Works. Q: Pardon? A: I was contracted in National Works. I was coffee buyer, processor, I was a businessman and I did not claim some of the things I lost. Q: So you got money for things you did not claim? A: Yes. Q: I see. A: And for other people. Q: Alright, do we have the first writ in Mr Balepa or Mr Malu told us about that he went before the National Court and he raised that I dealt with? I would like to know who were the parties to that case.What is the name of the parties to—? MR GOMARA: The one which came before — THE CHAIRMAN: Yes, me. MR GOMARA: That is the plaintiff being Benny Balepa himself? THE CHAIRMAN: No, Benny Balepa, not Benny Balepa Malu. MR GOMARA: No. THE CHAIRMAN: And he appears in the second writ as? MR GOMARA: It is Benny Balepa Malu. Benny Balepa, the second writ. THE CHAIRMAN: Most times? MR GOMARA: Benny Balepa, yes. THE CHAIRMAN: I see. MR GOMARA: Mr Malu, from that K4.5 million, is it correct that K3.88 million was paid by the Finance? A: Yes. Already gone, yes. Q: How much did you get? A: Me? Q: Yes. A: I am the owner of that court for years and my business closes, my economic loses here. THE CHAIRMAN: How much of the 3.88 million did you receive Mr Balepa? A: I want my lawyer to come and give me this thing and then we will discuss there, I have to call for Jerry Kama. Q: No, I am asking you now. You are being asked now, you must know the figure, you are businessman, you will know the figure that you received. How much was it? A: I will go through my black and white on— Q: Would you like to answer the question? How much money of the K3.88 million did you receive? A: Some of the money is gone to consultants, lawyers and— Q: I asked you, how much did you receive? A: Yes, I want my lawyer to come and tell you how much they got and they can bring black and

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  • white and show it. Q: You are the businessman, Mr Balepa. Tell us how much you got? A: I have to work it out, all my loses and everything and I will give it to you. Q: Mr Balepa, you are here on oath. A: That is right. Q: Do you understand the question? A: Yes, I understand. Q: How much did you receive from your lawyer or from the Finance Department in paying out of the claim? A: Some monies they are held back at Finance and— Q: Yes, how much did you receive? A: I have to work it out on my papers. I did not work out that one. Q: You know how much you lost because you are a businessman and you said it was K900,000 and you still cannot say to this day how much you received? A: I will write it down in black and white and give it to you. Q: You can go down into the body of this hearing now, sit down, go through you papers and I will call you back. A: Yes, thank you. Q: You work it out and come back and tell us. A: But not now. [10:25 am] Q: No, now, I mean now. A: I did not prepare because you did not give me this instruction. Q: Well you can – it is a situation Mr Balepa, I can see the situation developing that you are beingcontempt of this hearing if you do not answer. Because I am of the belief you know what the answeris, you know what the amount is — A: I am sorry but you see I am in chaos because of some money going there and here and I have not done that. Q: You can tell us about how much was deducted afterwards but tell me how much you received? A: I got almost a million kina in my account. Q: You have got now? A: Yes, but it is gone, some are already gone, gone to legal fees and certain things and I think 700 or 800. Q: Alright, you go and sit down in the hearing room. Go down to that table, take out a chair, sit down, work out exactly what the figure, I will call you back and that will be within 10 minutes. A: Not now because my lawyers — Q: In 10 minutes time otherwise you are facing charges. A: Thank you. THE CHAIRMAN: Yes, thank you. Very well, next please. Mr Gorua, you can go down and assist him. I do not want the man to leave at this stage without him informing us of what the answer tothat question is. MR KASSMAN: Chief, we call the next matter. THE CHAIRMAN: Yes, please. MR KASSMAN: In relation to that same matter, Lynette Malu, there is also Mr David Keta presentand also Mr Joseph Nanei. Maybe we couldhave that stood down and we will deal with the next matter which can be dealt with fairly quickly. We will deal with the next matter, the third matter on the list which is the matter of Morris Manum,Benjamin Manu & 44 Others –v- The Police and The State. We have called or issued summons andletters for Mr Clement Kuburan and Mr Zacchary Gelu. Mr Kuburam is present and we will deal with his evidence. THE CHAIRMAN: Yes, please. MR CLEMENT KUBURAM, Sworn: XN: MR MALARA MR KASSMAN: Chief Commissioner, this matter just by way of background it is a claim by personswho, in respect of a police eviction exercise in a settlement in Madang, this occurred in about 1998.A Court proceeding was commenced in WS 92 of 1999, the claim was settled by way of a deed ofrelease on 12 August 2002 and a certificate of judgment issued on 21 August 2002. Mr Kuburam has been called to give evidence in respect of his role in the proceedings as a registered valuer. Mr Malara will deal with the questions. Q: Thank you Chief Commissioner. Thank you, Mr Kuburam for appearing. Just a few questionsbased on the summons. THE CHAIRMAN: Before we have to identify him, would you give us your full name please, MrKuburam? A: My name is Clement Kuburam. Q: Would you mind spelling it please? A: Clement, C-L-E-M-E-N-T. Kuburam, K-U-B-U-R-A-M. THE CHAIRMAN:

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  • Thank you. MR MALARA: Thank you. Mr Kuburam, do you understand why you are being summonsed beforethis hearing this morning? [10:30 am] A: I understand that, Sir. Q: Are you a registered valuer? A: I am a registered valuer, yes. Q: Where you are registered valuer at the time when you got involved in this? A: I was. Q: Can you tell us a bit about your professional background as a valuer, your qualifications, youracademic and your experience? A: I hold a Diploma in Valuation from the University of Technology in Lae. Post Graduate DiplomaEvaluation from the University of Technology and Masters Degree in Business and Property from the University of South Australia. I was the former Valuer General. THE CHAIRMAN: Former Valuer General, yes. During what time was that Mr Kuburam? A: It was between 1984 and 1993. Q: Thank you. MR MALARA: Mr Kuburam, can you tell us how you got involved as to — THE CHAIRMAN: In this claim for this Madang Police eviction? MR MALARA: That is right, and the instructions, who did you receive the instructions from basically? A: I received instructions from the Law firm, Narokobi lawyers. Q: Narokobi lawyers. What were in the instructions? A: The instructions were to value how properties were destroyed by the Police Force in their eviction exercise in Madang. Q: Was that instructions given to you formally in writing or? A: It was formally, yes in writing. Q: So based on those instructions, how did you go about the course of your work to come up with your assessment? A: I made a trip to Madang to physically inspect what was destroyed during the raid and tookmeasurements of all properties destroyed in terms of buildings. The list of charges were provided by the claimants who lost their properties, including trees and other plantings. THE CHAIRMAN: Did you say trees? A: Trees, yes, plantings. MR MALARA: Are you be able to confirm how many people were involved in the claim as claimants. Was it an individual, a group of people? A: On the list I have here, I have 49 but according to your papers it appears to be 47. Q: Alright, we have based our record on the number of claimants per the records we have received and that is how we arrived at 47 but we can always confirm that and update our records. So you were approached by Narokobi lawyers, you took instructions, you flew over to Madang, you went andphysically inspected the place and then you received some information from your claimants as to thedetails of the damages I suppose suffered and there were about 49 of them and you commencedyour assessment. Do you have a copy of that assessment or that valuation report? A: I do and it is here with me. MR KASSMAN: You have got a full copy of the valuation with you? A: I believe this only part of the original that I did, but it does contain the whole 49 that I did at that time. Q: Is that what you have, are there two sets of it or just one set of it? A One is a photocopy of the other original, yes. MR KASSMAN: I guess, we could may be asked for that to be handed in and marked? THE CHAIRMAN: So you actually have the thing, the copy for us? A: That is right, Sir. Q: Yes, thank you. MR KASSMAN: Could we have that marked for the record, Kuburam 1? [EXHIBIT TENDERED – KUBURAM 1 – COPY OF VALUATION REPORT] [10:35 am] MR KASSMAN: Mr Kuburam, what I have passed back to you is a copy of an affidavitwhich is marked with your name as the deponent as been sworn on 19 November 2001. That is the document I have just handed to you now. If you could take a look at that and just confirm that is anaffidavit sworn by yourself? A: It is, sir.

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  • Q: It is. It contains obviously some annexures or attachments to it which appear to be copies of theI guess the lists of property or chattels you say were damaged, et cetera, and then somephotographs. Are these documents part of what you have now handed in as being your ValuationReport? A: That is the detailed work of every property that was valued. Q: So this document was not – was this document here that you have now provided to theCommission, it describes Valuation Report of BiliaPoint settlement, Portion 511 Kranket, Madang, Volume 2. Was this full bundle, of this documenthere which I have now discovered, was this presented in the National Court proceedings? A: I think it was but this is only Part 2 of the two volume report. Q: Alright, and Part 1, Volume I should say? A: Part 1, Sir I have difficulty in locating it. Q: I am just wondering whether what is contained in the affidavit now, if you could just quickly lookat that, the attachments to it. Your affidavit is 16 pages and then attached to it are basically I think an itemized list of each of the chattels lost or destroyed. Would this have formed part of this volume2 or your report or volume 1 of your report? A: It would have formed part of the whole 1 and 2 volumes, yes. Q: So this is a summary? A: It is, yes. Q: What is in your affidavit, is that a summary of what you have got in volume 1 and volume 2? A: I would believe so, sir. Q: Sorry? A: I would think so. [10:40 am]Q: Thank you. You may have addressed it in your report. Do you describe the basis,Mr Kuburam, of your valuations, your methodology, et cetera, how you came to your assessment, isthat described in here? We have not read it so— A: I think the report contains the approach that I used. Q: This report here? A: That is right. Q: Alright. A: It was the cost approach that I used in the assessment of the structures, the cost approach. Q: Chief we have not had an opportunity to read this report. THE CHAIRMAN: Yes, I understand. MR KASSMAN: We may just proceed with some questions but obviously if there are some specifics we might address that in due course. So the method by which you conducted your inspections toascertain the ownership of materials or to verify ownership et cetera and then to verify the values ofthe chattels whatever was being claimed as been lost, you describe that in your report? A: That is right. Q: Just as a general rule, sorry just generally speaking, you attended in Madang, the information thatwas provided to you was all provided by the claimants and their lawyer, Narokobi Lawyers? A: No, a lot of the best information of structures, I physically went and inspected every property. They were presumed to be destroyed and took measurements of the sites where they were located. Q: How did you satisfy yourselves that what was being claimed, what you viewed was being damagedwas one and the same thing? A: A lot of the material came from the claimants and the properties were destroyed two years earlierand I had no basis to dispute what was given to me. I accepted what was provided to me to betendered in good faith. Q: When did you attempt to conducting inspections? So you said two years later? A: That is right. Q: Two years after the actual loss? So the identification of what was destroyed, the remains of whatwas destroyed, in coming to that you relied on what the claimants told you? A: What the claimants told me apart from my own inspection of the sites. Q: Sure. Was there any – did you in the course of your inspections or at the time of yourinvestigations, did you consult with the police or any officer of the State? A: I did not consult the police, no. Q: Would it be fair to say that – you did not consult with any officer of the State? A: No. Q: In my quick perusal of the list of items, there is some talk of just generally trade store

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  • goods,some they say or the four bedroom house and just talking generally some were described as justkitchen utensils, one here describes a bakery which you go further to affirm by way of evidence inyour affidavit as being what was lost. How did you satisfy yourself with there was actually a threebedroom house as opposed to a one bedroom house or that in fact there was a bakery in thesettlement or that kitchen utensils or chattels were lost, bearing in mind that some of the amountsare fairly substantial, just reading through from page one, some one claims a total of K13,900, thenthe next page, some one claims K56,500 for loss of his house, loss of chattels and economic treesand the third person listed where he claims his house lost bakery, chattels, economic trees and anvaluation he has just put K29,100. How did you conduct your assessments to ascertain that thesevalues, firstly these properties, these chattels et cetera were in fact destroyed, that they were ownedby that person claiming and that they amounted to such a figure? [12.15 pm] A: During inspection, there was nothing left of the properties, everythinghad gone by then and I accepted what was tendered to me to be tendered in good faith. That is basically how I approached thevaluation of the properties in Madang. I had no suspicion to say that they were untrue. Q: You had no grounds — A: I had no grounds to do that? Q: Naturally, I am sure in your professional judgment you exercised some method to probe andsatisfy that, that was an actual valuation. There was a three bedroom house, did you – your back upwould be too check with Town Planning, to check with as to constructions or whatever improvementset cetera — A: These were houses located outside of the Town Planning area. So Town Planning could not have records of such improvements. Q: So what would you normally check to any third party source, any other source to verify what wouldhave been claimed? A: The only way to verify what was destroyed was to inspect the site and talk to the people whoowned them at the time and take the descriptions of where the house may have been. That was the best I could do at the time. Q: Were they produced to you photographs of — A: That is right, they did produce some of the samples attached to their report at the back. Q: Did they do and actually produce a valuation? A: No, they did not. They produced sketches of houses they owned. Q: Sketches? A: Yes, photographs of some time. Q: Yes. THE CHAIRMAN: This is a settlement, there would be no rules, regulations or anything at all, they are

    just squatters0 A: That is right0 Q: And you took measurements, how did you decide whether a four bedroom house or a three

    bedroom houseA

    A: I have no way of telling. I took the information which came from the people who lost theit properties0 Q: I see, right so essentially you have accepted of what they told you and put a valuation based on .

    how did you establish the valueA A: The value was based on costs, cost of the house that was destroyed0 Q: And that was your information or their informationA A: The cost was mine, the side of the house came from the owner who lost the house0

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  • Q: I see. You established what you considered a cost for a house of a settlement house at that time,

    of a four bedroom or three bedroom or –/ A: That is right0 Q: And a bakery, how did you pick up a bakery or change the valuation on that, what was the –/ A: The measurements came from the owner and I applied the unit costs0

    MR KASSMAN: Basically, the claim was that he was running, operating a bakery and selling what? A: The guy who owned the bakery said he owned one which was confirmed by those living in thesame settlement. Q: How did you satisfy yourself that there was a bakery, was it just an oven that was there and that is a bakery or? A: Sir, I had no way of justifying. Q: So how did you probe that claim in anyway? Did you ask, did you purchase bakery equipment, you have some way — THE CHAIRMAN: What was the bakery, did you ascertain what was the bakery or did you justdetermine it was a shop? A: I did ask them what it was and they confirmed it to be a bakery. Q: Which is made up of what? A: I did not inquire into that, sir. Q: Thank you. [10.50 am] MR KASSMAN: In most of the claims, you described economic trees. Really there is nodescription, was that just a general category of a particular claim for gardens that were destroyed etcetera or? When you say economic trees, what do you refer to? A: Economic trees would embrace the whole garden, fruit, mangos, sago, this kind of that wouldrepresent economic trees. THE CHAIRMAN: 49 trees, economic trees, how many trees? Does the settlement got a lot of trees? A: They had a lot of trees, yes. Q: All right, move on. MR KASSMAN: The total value by just looking at your affidavit, it came to K1,721,120. Essentially,the population of that particular settlement, some 49 houses, would I be correct? Did you ascertainwhich of the claimants were employed in any form of employment or were they self employed or? A: Some were employed, living in the town, others were self employed. Q: And how did you ascertain that? A: I spoke to every individual personally and they confirmed that with me. Q: Did you check on the accuracy of that information from the claimants? A: I did not see the need to do that at that time. Q: Why? A: Because here I am dealing with property he lost, it did not have anything to do with hisemployment. Q: In your professional judgment, checking the accuracy of information that is provided to you, wasnot necessary, you just make your assessment on what the claimant tells you? Essentially, that iswhat you are saying? A: That is what I am saying, yes. Q: So, there is no real judgment on your part? A: They provided information to me. If the person was employed, he would have told me that and Idid take note of that. Q: So right throughout your inspections et cetera you did not speak with the police officers who werealleged to have gone in and destroyed them? A: No. Q: No, you did not? A: I did not. MR MALARA: Mr Kuburam, the policemen who actually got involved in the eviction were named in the writ of summons, filed by the plaintiffs or the claimants’ lawyers. There is a person by the name of Senior Constable Dimok Dage who was the policeman on site and his chief inspector BenSimitum. They actually handed up giving – after the proceedings went through, they ended up givingstatements to assist with the office of the Solicitor General. I will just read one or two of the

  • Page 11 of 174

  • comments they made in the statement. $ccording to Mr ‘imok ‘age’s statements he was the Sergeant in charge and on page two of this document he said, “every member was security consciousand had been verbally detailed of this eviction exercise and that there was no force used of physicalstrength by the police.” In other words every occupants – and the second line says, “every occupantswere educated well in advance and they voluntarily moved their belongings on instructions.” That is what was said by the Sergeant Mr Dage Dimok who is named in the summons and his policeprovincial commander at that time Mr Ben Simijun also said that in a separate statement he madethat, “any suggestions of misconduct or use of force or removing of personal property is totallymisleading. The complainants have formed stories to defame police and claims for compensationhave no basis.” With those statements what do you say? THE CHAIRMAN: I do not see how he can be asked about this question. It is two years after theevent, he was not the claimant. Did none of these people tell you that in fact they had removed alltheir equipment; all their assets? [10:55 am] A: It was revealed to me that some were still occupying their houses when the policemoved in and they even showed gun pallets on some of the people that were been chased out of thesettlement area. Q: I am only – you see questions about what happened two years after the event do not go to theclaimants. MR KASSMAN: May be I will put it in another way. The evidence that has been – from the files of theSolicitor General that some of the settlers were informed and they in fact removed their belongingsand they in fact dismantled their houses and parts of their houses or whatever so there was anexercise to do that. Where you advised of that? A: I was advised that the police had moved while the people were still there, that was the advice thatwas given to me. Q: The claimants’ information provided to you was that the police came in, they were not warned and their properties were destroyed? A: That is right, sir. Q: Commissioner, we have no further questions. THE CHAIRMAN: Obviously you valued 49 properties, call it 50 at K1,121,000, is that right? I am giving very rough figures, I have just simply divided 50 into K1 million. That works out at aboutK20,000 per house. Is that the average price, the average value of a house in a settlement? A: That would be Sir, yes. Q: And in any particular settlement here in Port Moresby as well? A: In Port Moresby now, the costs are quite different from what they were then. Q: They were cheaper or low?

    A: They are a lot dearer now. Q: It is a part of just general knowledge I have heard prices of four or five thousand for a settlementhouse, is that not an average price; an average value? A: In Port Moresby at Tete, that was affected by the same sort of thing, the cost there would be muchhigher than what they were in Madang. Q: You think they would higher than that? A: That is right. Q: Very well thank you. MR K$SSM$N: Sorry &hief, just the total amount, giving an attachment to Mr Kuburam’s affidavit with K1,721,120. THE CHAIRMAN: K700,000? MR KASSMAN: K1,721,120, that is in the affidavit of Mr Kuburam. A: That is right. Q: Your affidavit Mr Kuburam. THE CHAIRMAN: Closer to K30,000 each. What 2002? MR KASSMAN: The affidavit sworn on 2001. [11:00 am] THE CHAIRMAN: Alright, thank you very much. MR KASSMAN: We have no further questions. THE CHAIRMAN: Thank you very much Mr Kuburam you have been very informative. Thank you forattending, we appreciate it. If there is any other further questions which we need to ask we will giveyou due notice as much as we can about it. Thank you. Mr Gorua, is Mr Balepa able to assist usnow? MR GORUA: He seems to be still writing. MR KASSMAN: We will go straight to your matter. We will deal with him now. THE CHAIRMAN: Yes, Mr Balepa we will hear you now. Very well, are you able to tell me the answer now?

  • Page 12 of 174

  • A: Yes, I can give you some but some I still want to go back and pick it out. Please give me time and let me go and get black and write and look through and put it down. Because everything is not in mymind you see. What I brought is my document to prove the claim and I did not think of that. Q: Look we are not asking about your claim in the sense of what the details of it. I am trying to ask you what money you received in settlement, how much did you get? A: Already paid or you mean everything? Q: Yes, the moment the case was settled and the Finance Department paid out, how much did they pay to you? What was the figure? A: That is right, 3 million 80 thousand something. Q: That was paid to you personally? A: No, it came through the lawyers and the consultants. Q: And the lawyers gave you? A: I think they gave me almost 1.6. Q: They gave you almost 1.6 million? A: Yes. Q: And what happened to the rest of it? A: Some money still outstanding there. MR GORUA: They gave you 1.6, how much Nouairi Lawyers — A: It should have been 500,000 for Nouairi Lawyers themselves, more than 5. Q: 500,000? A: 500,000 I gave them that one and I gave him some money before, was my money so I do not mention it. THE CHAIRMAN: You gave Nouairi Lawyers 500,000 of the 1.6 or — A: Yes. Q: Of the 3.8? A: No, I think of 1.6. [11.10 am] MR KASSMAN: I think we need to be careful here in terms of what Mr Malu is pointing out, that Nouairi Lawyers is a legal firm I know, that is run by the brother of Jack Gamoga Nouairi so Mr Malu needs to be correct on who he is saying received the money. Mr Malu, the money that was paid by the Department of Finance, the K3.8 million or so, where did that money go to? A: Previous payments were collected by CCS Anvil and Nouairi lawyers themselves. Q: Sorry? A: Previous cheques it came through their channel. Q: So you say the funds went to CCS Anvil? A: Yes. Q: A-N-V-I-L that is the name of the consulting firm? A: That is right. Q: And you say it did go to Jack Nouairi? A: Who? Q: There is a difference, Jack Nouairi was a lawyer, I understand employed with CCS Anvil and there is also a legal firm called Nouairi Lawyers which is run by Jack Nouairi’s brother who is %ill Nouairi. So

    who was acting? A: I think Nouairi Lawyers was acting under CCS Anvil or I do not know. That I do not know, they were doing themselves in their office. Q: So they were both? A: Yes, both working. Q: Was your lawyer Bill Nouairi or Jack Nouairi? A: Jack Nouairi, I think. Q: Jack Nouairi?A: Yes. Q: So you had two law firms at the same time acting for you? A: No, I do not think that law firm – maybe Jack Nouairi does not have money and the guy employedhim or I do not know? Q: Now, you are saying the money went – the K3.8 million, it was paid to Nouairi Lawyers? A: Only the first cheque, K1.6. That is what I am saying. Q: There were a number of cheques? A: Yes.

  • Page 13 of 174

  • Q: And the 3.8 million over part payments went to both CCS Anvil and not Nouairi Lawyers? A: Yes. Q: Out of that you say you received about K1.6 million, where did you receive that money from? From CCS Anvil or from Nouairi Lawyers? A: No, Nouairi Lawyers got it and gave it to me the first time. Q: The first payment? A: Yes, because they got their cash already. Q: The first payment that was made by Department of Finance was made to Nouairi Lawyers? A: Yes. Q: How much was that? A: Almost 1.6 million something; 1.480 or something, they got it. Q: Sorry? THE CHAIRMAN: We have the figures paid out? Do we have the Finance Department figures? MR KASSMAN: Now, you say you received 1.6 million, that was paid to you? A: Yes. Q: To you, which you put through a bank account? A: That is right. Q: Which bank? A: BSP0 Q: BSP Waigani, orA A: I think Waigani or Port Moresby0 Q: SorryA A: Port Moresby I think0 Q: Which branch did you have your bank accountA A: BSP, Port Moresby0 Q: BSP, Port MoresbyA A: Yes0 Q: So, the 1.6 million went into that bankA A: Yes0 Q: And that was for you alone or for you and the other plaintiffsA A: No, some tax expenses, some people still outstanding, I have not paid them yet0 Q: Sorry, you need to be clear about this. The 1.6 million, was that your share of claim? A: No, for paying other outstanding bills and other people and my share is not coming out yet, I ao

    still waiting. I have to pay bills 20 years, it cost me a lot of money, you see. THE CHAIRMAN: You say that you have not paid these others yet their share of the K1.6 million? A: I received only K800,000 but I have to work it out and I have to get something else too, that iu

    what I am saying0 Q: You have got to work it out, how much –/ A: The rest of it and at the same time a lot of bills still outstanding, like CCS Anvil got 1.4 but the{

    charged me 1.850 or something, and Nouairi lawyers and some money is not paid yet and like Joseph

    Nanei, I have not paid him yet. There is a lot of confusion, lot of problem after problem, they are

    giving me problem here and there. There are some allegations that — Q: Mr Malu, can you produce something in writing to confirm what amount you received. You sayyou received 1.6 million and you also produce to the Commission details of what you did with that1.6 million? Are you able to do that? A: Yes, I will be able to do that. I will do that, that is what I was asking. Q: Can you do that and return to the Commission tomorrow? A: No, I cannot do that because I have no computer, no nothing, it will take me a couple of days. Q: You can write it, hand write it? A: Yes, handwriting is alright, it will take time but just give me two days or something. [11.10 am] Q: Sorry? A: I have no car and give me some days. Q: That K1.6 million and you say you have no way of producing this information? A: Yes, that is right. How can I put in everything here today. I thought I will bring my Works and Supply receipts and evidence from the ‘epartment of Southern Highlands for 1980’s, 85’s and all

  • Page 14 of 174

  • those things I have packed up here – now you put me in a different way and I did not bring thesethings. THE CHAIRMAN: When was this K1.6 million paid out, 2002? MR KASSMAN: They are in part payments, February of 2003 — THE CHAIRMAN: A total of K3.8 million. MR KASSMAN: Up to September 2004, a total payout by Department of Finance, K3.8 million. THE CHAIRMAN: You have received K1.6 and you still have not paid your accounts yet, is that right? A: Yes, I paid some out and I still have got K800 yet. Q: To pay? A: No, some outstanding I have paid. I have not mentioned, I am talkingabout that money which that is paid to me directly, you clear. MR KASSMAN: Mr Malu, can you return on Wednesday at 9.30 a.m with that information? All the funds that you have received from either CCSAnvil or Nouairi Lawyers and all the payments that you have made from those. Any records that youmight have to support those payments. A: Yes, that will help me thanks. Q: Wednesday at 9.30 am. THE CHAIRMAN: Yes, thank you very much then. We will see you then on Wednesday 9.30 a.m, thank you Mr Balepa. A: Thank you. WITNESS WITHDREW MR KASSMAN: In respect of the same matter, Mr Joseph Nanei and also Mr — [11:15 am] MR JOSEPH NANEI, Sworn: XN: MR GORUA: Q: Thank you Mr Nanei, could you state your full name name? A: My name is Joseph Nanei. THE CHAIRMAN: Thank you Mr Nanei. A: N-A-N-E-I. MR KASSMAN: You are a lawyer by profession? A: That is correct. MR GORUA: You have your own practice? A: That is correct under JD Nanei Company lawyers. Q: Mr Nanei, I think you are aware of the matter in which you have been called. Perhaps I will ask you what you know about the claim, claim of Lynette Malu and that of — A: Yes, I saw my name on the Paper and I am appearing voluntarily. THE CHAIRMAN: Thank you for that. MR GORUA: Thank you Mr Nanei. Could you tell the Commission about what you know about theclaim? A: Yes, I think there were actually two different suits. The first one is WS266 of 1991, which wasactually the writ of summons which was done by Anda Lawyers in which Mr Benny Balepa was thesole plaintiff arising of a police raid in his place, Southern Highlands. Q: That is the matter of Benny Balepa in person? A: He himself, yes. Q: And did you have at any stage to take over from Anda Lawyers? A: That is correct, yes. I took over from Anda lawyers and — – Q: And that matter actually went to full hearing? A: Yes, it went to full hearing in Mendi in Southern Highlands and a judgment was delivered in favour of Benny Balepa. Q: What about K35,000? A: Yes, I have a copy of judgment here I can hand it up to the court if you wish. Q: That is fine. I think it is a reported matter so – could you confirm that is Benny Balepa, plaintiffand that is the matter, it is an unreported N1374 of 1995? A: No it is WS 266 of 1991. Q: Yes, the reported one I am talking about, the judgment? A: Yes, there is a judgment on that one. Q: And that this is numbered N1374? A: I am not sure about the judgment but I only have the order. Q: Perhaps I will just show you this judgment, we will just confirm we are talking about the — A: Yes, that is correct, yes this is the one. Q: And Mr Nanei, you then acted for Lynette Malu? A: Lynette Malu, yes. She is the principal in that case, in the subsequent case, WS662 of 1995. That is a second case which I have earlier alluded to. Q: How did you come to meet Lynette. Is it through Mr Benny? A: Lynette is a wife of Benny Balepa; she is the wife of Benny Balepa and she actually and others theyactually instructed me to issue a writ because their claim were not, in the first writ of summons WS266 of 1991and she personally instructed me to, she was in my office a number of times, told methat her properties were destroyed and they were not accounted for in the claim, in the first writ. Q: And instructions were given to you by Lynette Malu? A: That is correct and Benny Balepa as well. Q: And was Benny a plaintiff in the Lynette Malu proceedings? A: Yes, he is one of them. Q: And

  • Page 15 of 174

  • that is from the same set of facts? A: It is the same circumstances but those are claims that they are not in the first writ. They never claimed them. What is in the second writ, Benn{ Balepa, never claimed them in the first writ and they are there. I have a problem with the writ oh summons which they are in Paragraph 9, Paragraph 9 B, C and D, cost of IBD deposit, loss of income from National Works Construction–/

    Q: So that is which statement of claims, which matter? A: This is the one from WS Number 662 of 1995. Q: Lynette Malu? A: Yes, and then loss of income from coffee purchase and sales. Those were the claims the plaintiff Balepa himself claimed with the other 48 others in the second writ. Q: Sorry, you took over from Anda Lawyers, that is the Benny Balepa matter? A: That is correct, yes. Q: At what stage of the procedures did you take over? [11:20 am] A: I actually was, when I took over the matter I was the lawyer who went to trial in that case when acting for the plaintiff. Q: Did you ever consider, say amend in the statement of a claim at that time to accommodate whatyou say those claims were not — A: No, we never amended that writ to claim what was subsequently claimed so we just went forward to the trial with what was in the original writ of summons. As you can see the economic loss, therewere 11 plaintiffs, not Benny Balepa, they claimed K158,400 excluding Benny Balepa and alsoexemplary damage excluding Benny Balepa because he was already dealt with in the first one. Q: But Benny Balepa, you mean you acted for Benny Balepa in a separate claim? A: Yes. Beg your pardon? Q: In a proceeding which he instituted himself? A: The first one? Q: Yes. A: It was actually, it was under Anda Lawyers. Q: And subsequently you took over? A: Yes. Q: Now you act for Lynette Malu and you include Benny as a plaintiff? A: That is correct, because he, as I said, he claimed damages for which did not appear in the first writ, apart from all the others, the 49 of them and 48 plus 149 so there were others not only BennyBalepa. Q: You say Lynette is %enny’s wife and the proceedings which you conducted a trial, that is %enny’s claim we are talking about, I am trying to distinguish what properties which Benny lost andproperties which Lynette lost. You will appreciate that Benny and Lynette are husband and wife?

    A: Yes. Q: And if you like the properties are much more his properties, so the properties lost by Benny wouldbe similar to that of – I mean they are same properties lost by Lynette, what do you say about that? A: That is not correct. The law is clear. A woman is independent of the husband. She had her ownproperties, including chicken – she herself gave instructions and told me – she had chicken houses and chickens and other farming and her own properties apart from Benny Balepas. Q: So Mr Nanei, I mean this is a police raid and you are saying if the house that they both lived in wasburnt down— A: Yes that is different, she herself was claiming for other matters not claimed in the writ, her own properties and she was not the only claimant, there were 48 others. Q: Mr Nanei, I am looking at the statement of claim which you drafted for Lynette Malu and it doesnot specifically plead as to what each plaintiff lost? A: The economic losses are there in paragraph 9E and there were 11 of them, 11 plaintiffs which included those operating group, businesses, trade stores and business groups. Q: So you are saying that all of those 40 plaintiffs have trade stores? A: No, 11 of them, paragraph 9E only says 11 of them were claiming economic losses, those who are operating in groups and business and trade stores and their claim actually total K158, 400. Q: Mr Nanei, we have some documents on file which show that there were some variouscorrespondence

  • Page 16 of 174

  • exchanged between Mr Keta and that of your firm regarding this particular claim. Mr Keta was representing the other claim, that is Yakoa Papi and Others and you were representing Lynette Malu. Now some of the plaintiffs which you represented are the same plaintiffs also in theYakoa Papi proceedings? A: I did not know that Mr David Keta had another proceeding including some other plaintiffs we had and it happened that we filed a writ in 1995 and they themselves also filed another writ. And I believe that matter has been dealt with. There was an order to remove some of the ones who were inhis writ and the other ones in this writ. Q: So did that happened? A: I think that must have happened yes. Q: Where you still acting at that stage when that order was made? A: There was an order made, yes. [11:25 am] Q: Sorry my question is were you still acting for the plaintiffs at that stage when thatorder was made? A: There was an order made, yes. Yes, I was still acting. Q: ‘id you subsequently amend the list of plaintiffs’ schedule. What actions did you take? A: There was an order pending and before I could do anything Benny Balepa started. I mean he was not even coming and giving instructions to me so I actually was no longer acting in this matter. Hesought other lawyers to help him and proceed with his case so and that is why the matter left myhands and in fact I have never been paid a toea on this case so. THE CHAIRMAN: Benny Balepa, he was the one who gave you your instructions? A: Him and the Lynette Malu and the Others. Q: They all gave them? A: Yes. Q: And you say Benny Balepa took the matter away from you? A: That is correct. Q: What about the others? A: They actually got a judgment — MR GORUA: Not a judgment, the matter was settled out of court. A: Yes. It was settled out of court but he was the one who was coming on behalf of the otherplaintiffs because his wife had come a number of times but some other times it was Mrs Balepa or MrBalepa and I asked him to pay some deposit, they never put any deposit in my Trust Account. So Iwas really at that stage, since I was not paid any money for this case and the times he went to Hagenhe only bought my ticketand no monies were deposited into my account. So I really was reluctant to continue with his caseand then he went and paid other lawyers. Q: Mr Nanei, so when Benny withdrew instructions from your firm, at this stage you never amendedthe list it was still – say the Court order regarding the parties were not complied with at the stagewhen the instructions were removed. It that correct? A: Actually the orders were given in Mt Hagen as far as I know but I asked Mr Benny Balepa to putsome deposit into my account, he did and then the others said they did not. Q: Sorry my question is, at the stage when the instructions were withdrawn, the Court Order was notcomplied with, that is in respect of the parties that we are talking about. So when the file wasremoved from you you never amended the list, it was— A: At the time when the matter left my hands I do not think that but I spoke to Mr Keta about it andthat there should be, the writ should be reconciled. THE CHAIRMAN: Was the matter settled by then? A: No, Your Honour no. It was not yet settled. It was settled after the whole matter left my firm andI have a copy of the deed of release here with me which I wanted to give to the Inquiry because whatwas settled is not what I drafted in the writ. [11.30 pm] MR GORUA: Mr Nanei, in the statement of claim, your clients asked about K900 plusthousand kina? A: Round about there. Yes, I think the total is round about there. Q: You also wrote a letter to the Solicitor General offering out of court settlement for that amountasked for in the statement of claim?

  • Page 17 of 174

  • A: I may have done it, I cannot really recall. I may have, I am not really sure but it is correct, it isabout the claim is about 900 and as to the 4.5 million I am not aware of it. It is handled by otherlawyers. Q: You never? A: No. I had no part in it. I have a copy of the deed of release here for 4.5, it is different what Iinitially claimed for the plaintiffs, 49 of them, and I never benefited anything, I never got any money of this 4.5 million as Mr Benny Balepa told this Inquiry that I am still to be paid. Q: We have the copy of the deed of release on files. We certainly appreciated that. THE CHAIRMAN: Anything else? MR KASSMAN: Yes. Mr Nanei throughout the time you received the instructions up until instructions were withdrawn, who was the principal point for your instructions on behalf of the claimants? A: It was really Lynette Malu and Benny Balepa himself and the Others. They used to come to myoffice they all gave me instructions, they all came. Q: Did they sign anything to confirm that Lynette Malu and Benny Balepa was to be theirrepresentative to give information to you? A: No, they did not sign any, I really cannot remember it may have been but I cannot recall but theywere there the plaintiffs themselves and I can recall that some of them started to withdraw and theywent to Keta so they withdrew their instructions from me. MR GORUA: Mr Nanei, we will come back to the statement of claim. You talked about these 11 plaintiffs you say had tradestores. Is Mr Balepa also one of those 11 plaintiffs in this? A: No, he is not one of them because he has already made a claim. Q: And how about Lynette? A: Lynette yes, well — Q: You mean they had separate tradestores? A: No, she had chicken farming houses that were also burnt that was never claimed in the first writ.

    Q: No, we are talking about tradestores here. You are saying 11 plaintiffs, that is future economic loss, we are talking about business, tradestores— A: No, I do not think it is included there, Lynette Malu I do not think she had a store of her own butthe 11 other plaintiffs – herself was mainly about farming houses. MR KASSMAN: Mr Nanei, at the time when you drafted this writ, it is writ in WS 662 of 1995, did youever take any steps to satisfy yourself as to the accuracy of the claims? Did you visit the site to — A: No, it is in Wabag so I did not but I relied on their instructions and I believe that really there was apolice raid which destroyed a number of houses and their business. Q: And everything you relied totally on what the claimants have told you? A: That is correct, yes. Q: With regard to economic loss, did you have any documentation to support those types of claims or is it just what they told you? A: They have, I think they may have, they should have documents but those are based on myinstructions – they lost those the 11 of them out of the 48. Q: The identification of the items lost and the loss of economic loss et cetera, this is merely just astatement they produced to you and which enabled you, of which you relied on to draft the statementof claim? A: It might as well be yes. Q: Pardon? A: It is from instructions from them about those losses, 11 of them. Q: Is it safe to say you did not check? A: I did not go to the site but I just — Q: You did not check any other aspect of the claim to satisfy yourself as to its accuracy that it was a genuine claim? It was not just fabricated? A: No, from instructions I was satisfied it was a genuine claim because — Q: How did you satisfy yourself? A: I interviewed the claimants and they said that the police raid actually destroyed everything at Wabag. That is how I satisfied myself, from the plaintiffs’ instructions and when the fire goes on nothing is left at the village, they were burnt, the whole area.

  • Page 18 of 174

  • [11:35 pm] Q: Did you check with the police? A: No, I did not. MR GORUA: Mr Nanei, we will come back to the statement of claim, that is the statement of claim which you drafted for Lynette Malu, paragraph 9 and B, you asked, B is for loss of IBD deposit, that isK25,000? A: Yes, that is for Benny Balepa, he instructed me. Q: And C, loss of income from National Works contract, K141,000? A: That is also from Benny Balepa on his instructions. Q: And D, loss of income from coffee purchase and sale? A: That is also from Benny Balepa, those are the only ones from him. The others are not in there. THE CHAIRMAN: Loss of an IBD in a police raid? A: Yes, IBD deposit. Q: Where was that deposited? A: I got instructions, it was in a bank and all the documents got lost. MR KASSMAN: And that is a claim? A: Yes. THE CHAIRMAN: The bank? MR KASSMAN: You could not go back to the bank, just ask for the records. Is that a claim? A: That is one of the claims. Q: And what is the basis of that claim? What was lost, the certificate? A: All the document relating to that deposit. Q: But the money was in the bank, it was in an IBD, so how could police raid have resulted in the loss of the deposits? A: That was the instructions from Benny Balepa, may be you could ask him— Q: Mr Nanei you formulated this claim which you filed in the National Court? A: Yes. Q: And you say as a result of the police raid, someone lost an IBD deposit. I am struggling to understand how that would be the case? A: I aggressively put it to Mr Benny Balepa and he said he never got the money so he said he agreed that he has the right to claim it, he never got the money back, K25,000, that was his instructions. He said he never received the money back. Q: From the bank? A: From the bank. Q: So why should the State be responsible for that? A: It got burnt, the documents relating to that one got burnt, that was my instructions. Q: He could just go back to the bank and ask for it? A: He said he never got the money back; he was not able to get the money back. Perhaps you might put it to him. Q: And you were satisfied with it? A: Yes, that is correct. Q: You were satisfied with that? A: Well I put it to him strongly and he said he is a claimant because he lost his money as a result of the raid of fire, burnt all documents in relation to this. THE CHAIRMAN: You checked with the bank? A: No your Honour. It was an instruction from Mr Benny Balepa. Q: You could have sued the Bank, could you not? A: It was on the basis that the police raid destroyed all the documents relating to that one and he instructed me that he ought to claim it from the State, for the refund of the K25,000 which was inIBD. [11.40 a.m.] Q: I see, we move on. MR KASSMAN: Whatever your client tells you just proceed to put in the writ, is that what you aresaying? A: I actually put it through to him and there — Q: No matter how strongly he would have worded his instructions to you, Mr Nanei that could neverresult in a claim against the State, the loss of an IBD? A: That is a matter for evidence. Q: Pardon? A: That is a matter for evidence. Q: That is your view? A: Whether he actually lost it or not, that is a matter for evidence. It is only a claim. Q: I think you are wrong. You are wrong in law. &learly that is not the State’s responsibility? THE CHAIRMAN: As an officer of the Court, is that the story you put before the Court? A: I was satisfied that the loss of money was as a result of the raid, and as a result of documentsbeing destroyed. Q: And when you put that money in the bank in the first place, it is safe. It is an investment. Alright, carry on please. MR GORUA: Mr Nanei, following on from there, earlier on you said that this claim was not sought inthe proceedings which you represented Mr Balepa in the one that was individually filed. I have a copy of the submission I believe you made in Court, it was filed on 8 December 1994. It is titled, “plaintiff’s submission on assessment of damages”. That is in the matter of Mr %alepa as plaintiff himself and you claimed under economic loss, loss of income from hire truck to National Works and Iunderstand that is the same claim sought at paragraph C, 9C in the statement of claim of LynetteMalu and that is the same amount sought 141,000, and then (2) also in that submission, “incomelosses from coffee purchase and sales”. You sought 180,000; (3) you sought loss of income

  • Page 19 of 174

  • fromtradestore 67,500; andthen also (4) you claim interest bearing deposit forfeited by PNGBC and I believe that is the same IBDdeposit that you are talking about here 25,000 and you will appreciate that the Court actually made aruling and awarded your client 35,000. I am trying to work out how you were able to ask for thesame claim in the Lynette Malu statement of claim which you drafted? A: The law is very clear. You can only claim what is pleaded. Those are mere submissions theywere not on the writ and the Court did not entertain them so that is why I put them on the secondwrit. They were mere submissions they were not on the writ. So they were by way of meresubmissions they were not on the first writ that is why they are in the second writ. That answers thequestions, your question. They were mere submissions. THE CHAIRMAN: The first writ is in general terms and the submissions are in specific terms, right? A: That is correct. Q: And then they are repeated in the second writ? A: The submissions are just mere submissions, they cannot be entertained and the Court neverentertained those. Q: Essentially what is being said to you Mr Nanei is that Mr Balepa made his claim, went throughthe trial and he made his claim, for all the things that he wanted and the Court came up with anOrder for 35,000. He then goes and does exactly the same thing again through you and this time heeventually ends up with – he gets two cracks of the sweeties in other words and the second timeround his gets a settlement for 3.8 million. Now as a lawyer is that the right thing? Is that right that he was able to do that? A: Yes. Q: He was able to do that. He gets an award in which he was supposed to claim for one particularmatter, all the matters he is supposed to claim for. He does not get two cracks at the sweeties, heactually has to, make your claim, all you want, get judgment and that is it. You do not go back andsay, “I forgot to ask the Court for something else.” But even then he did not forget at all. He went and asked for the same things again. He got two awards inother words. Is that not what had happened? [11:45 am]A: As far as I was concerned, the matters on the second writ were not on the first writand that is how— Q: Even though there had been submissions for them? A: Those were mere submissions, they cannot really get anything from the first writ out of thosebecause they were never claimed. Q: They were submitted, they were part of the evidence for the claim? A: My position was that because they were not in the first writ, that is why they were included withthe others in the second writ, that is how they appeared in the second writ. Q: I see, alright. MR GORUA: Mr Nanei, obviously you are aware of it that it was not in the statement of claim, yet younever elected to amend the pleading? A: The pleading was never amended in the first writ. Q: Yet you asked for it in the submission? A: We did not amend the writ because Benny Balepa gave instructions that he was – in his first writ hedid not claim all his losses that is why they appeared with the others. They were not only Benny %alepa’s claims. THE CHAIRMAN: But strictly as a matter of law you go to court once on the claim; you put all yourclaim, you do not come back a second time. You do not have the right to do that, do you? A: For this claim you cannot but things unclaimed you can. Things that have not been added in thefirst writ, you can claim, you can still claim those. That was my position, they were not in the firstwrit so he had the right to claim them, they were not on the first writ. That was how I did it, I did not want to duplicate the claim because I was satisfied they were not on thefirst writ and the law is clear, what is not claimed you cannot do judgment for those, that was myposition. THE CHAIRMAN: Yes, thank you very much Mr Nanei. Thank you for appearing. We note

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  • youappeared voluntarily, thank you. WITNESS WITHDREW THE CHAIRMAN: Yes, we are moving onto another matter. MR KASSMAN: Yes we got another matter. THE CHAIRMAN: Before we do, I see Mr Balepa is still here. Mr Balepa, we said we will see you againon Wednesday. Is that satisfactory? Very well. MR BALEPA: I just want to hear this IBD. IBD was forfeited because (inaudible) got it and threw it onthat car. The loan was outstanding, that is why it was thrown in the rubbish bin and I think I havethe right to bring it— THE CHAIRMAN: You can tell us about that on Wednesday. Thank you. WITNESS WITHDREW MR KASSMAN: Chief, we have another witness in relation to the same matter of Benny Balepa andLynette Malu. It is Mr David Keta, a lawyer. We will come back to Mr Keta probably at 1:30 p.m. We just call very quickly matter No 5, the matter of John Tari Makabe and Department of Works and theState. We have two persons here to give evidence; one is for production and that is Mr Chris Kabauru. [11:50 am] MR CHRIS KABAURU, Sworn: XN: MR MALARA THE CHAIRMAN: Yes, and your name is Mr Christopher? A: My name is Chris Kabauru. K-A-B-A-U-R-U. MR KASSMAN: Mr Kabauru, you are now the Valuer General? A: That is correct. Q: That is a position that you held since when? A: Since 2007. MR MALARA: Mr Kabauru, the claim as you understand is made by one John Tari Makabe. It was a claim in relation to damages, loss he suffered in respect to destruction to his personal properties andalleged loss of business income and assets as a result of that destruction and so he filed a claimagainst the Department of Works. This is in relation to the Poreporena Freeway road projects inErima. We have summoned you to appear to produce records to confirm if the claimant per yourrecords is a legitimate lease or title owner of that portion of land which he has used to make thisclaim. In doing so you have produced some documents this morning to us? A: Yes, I believe I have produced documents this morning. Q: Yes, under summons and we have got the documents on hand, we just like you to reconfirm whatyou have produced and give us your thoughts based on those records on this claim? MR KASSMAN: Mr Kabauru, you have produced this bundle of documents. The first on the bundle isa letter that was signed by yourself, a two page letter, addressed to the Chief Commissioner,Commission of Inquiry into the Department of Finance, dated 5 July 2009. The second is a letterfrom Salem Hosa, acting Valuerer General dated 14 September 2004 addressed to the claimant JohnT Makabe. The third document is basically a claim by John Tari Makabe addressed to the Departmentdated 16 March 2000. Fourth document is I guess that is – is that a valuation? It is, “Subject;Unimproved Value Proposed”. It is dated 6 June 1995 and Clement Kuburum, the Valuer General.That is the fourth document? A: Yes, that is correct. Q: Fifth document is a request for valuation of report or valuation or report. That is all that you hadon the file of the Valuer General? A: That is correct. Q: Essentially, what you are saying in your letter to the Commission of 5 July 2009 is that thevaluation you did that was, sorry conducted in 1995 was for the sum of K336,000? A: That is correct. Q: As to the second claim for K4.5 million it had nothing to do with the office of the Valuer General? A: I think there is nothing; there is nothing on record. Q: Nothing? A: Yes. Q: From your perusal of the file you say you are satisfied that the valuation that was conducted in

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  • 1995 for which the sum of K336,000 was arrived at, that is the valuation of the loss or the claim byJohn Tari Makabe? A: That is correct. [11:55 am] Q: You are aware that there was this subsequent claim for K4.5 million, are you aware of that or not? A: In fact since resuming this job as the Valuer General I have no idea of and in fact I am not quiteaware of this also. Q: I understand you obviously were not the Valuer General at that time in 1995 when the ValuationReport was done but from your perusal of the file I am sure before coming to this Commission,would you have any comment to make in relation to a subsequent claim for K4.5 million by the sameclaimant? A: From my understanding I think this was done out of court and from my understanding also myofficers are not aware of this K4.5 million. Like I said our valuations stands at K336,000. Q: You are satisfied there was a valuation of the claim? A: Yes. Q: We have a copy of a letter Mr Kubarau, it is a letter of which you have not produced but it is aletter on the letterhead of the office of the Valuer General. I can hand this to you. It is a letter dated 4 August 2005 addressed to Peri Lawyers, signed off by acting Valuer General Saleng Hosa. And in there Mr Hosa says he has reviewed the figures and he has re-assessed the claim at K4.5 million asat 4 August 2005. Are you aware of this correspondence? A: No. Q: So it is on? A: It is not in our file at the moment, yes. Q: So this is the first time you are receiving this letter? A: Yes, in fact that is the first time. Q: I wonder if it might be appropriate to allow you time to consider your file and may be speak with Mr Hosa and may be return on Wednesday I guess so if you are able to – clearly this letter does conflict with what is on your file as you now say that you have perused? A: Because most of our assessments they are done within the file. If it not then, it is may be aquestion I need to ask why this information is not in the file. [12:00 pm] Q: Mr, is it, sorry, I am assuming that it is a Mister, Saleng Hosa, is he still in the office of the Valuer General? A: He has in fact resigned. Q: When did he leave? A: 2002 I believe. Q: 2002? A: Sorry 2004. Q: The letter is actually dated 4 August 2005. Was Mr Hosa – are you able to tell whether Mr Hosa was in the office at that time? A: I think he was still on an acting capacity at that time. Q: In 2005? A: Yes. Q: I thought you said he resigned in 2004? A: I thought 2004 but may be 2005, yes. Q: Can you confirm that when you return, I guess? A: Yes, I guess he is around but we just need to locate where he is. Q: Sure, but as far as your records are concerned, if you could may be return on Wednesday at 9:30 to address I guess the existence or otherwise of this letter as far as your records are concerned and secondly, I guess the whereabouts of Mr Hosa, and in particular the period when he served in the office of Valuer General up until his resignation? THE CHAIRMAN: Does your file say – you had calculation of valuation of 336 that would have been done on calculations, there would be calculations to make that? A: That is correct. Q: And that file, does the file show those calculations? A: No. Q: Do they keep records of the calculation? A: We keep records. Q: And do you have records of that 336? A: Like I said we just need to go through the other files in the office and just make sure that, yes wedid. Q: And a re-evaluation up to K4.5 million would also be backed by calculations which you should have records of? A: That is correct. Q: We would like to see those. MR KASSMAN: I guess Mr

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  • Kuburam, on your return may be you could assist the Commission with an indication on the process by which a valuation is conducted – unimproved, with improvements, etcetera. THE CHAIRMAN: Many thanks indeed. All right, we will see you then, Wednesday. MR KASSMAN: Wednesday at 9:30, would that be convenient? A: Yes that is alright with me. THE CHAIRMAN: Thank you. A: That is all right, yes. MR KASSMAN: Thank you very much. WITNESS WITHDREW MR KASSMAN: We have Mr Michael Sirabis, he has been here this morning, if we could deal with him? THE CHAIRMAN: Yes, thank you. [12:05 pm] MR MICHAEL SIRABIS, sworn XN: MR KASSMAN THE CHAIRMAN: Yes, thank you Mr Sirabis, you have been very patient. A: Michael Sirabis is my name. S-I-R-A-B-I-S. MR KASSMAN: Mr Sirabis, you are with the Department of Works? A: I am as the Assistant Secretary. Q: Is it Assistant Secretary— A: For Survey and Lands. Q: Survey and Lands Branch. Chief Commissioner, we did not mark the bundle that was producedbefore Mr Kuburam but if that can be marked Kuburam1 bundle? THE CHAIRMAN: Kuburam1. [EXHIBIT TENDERED – KUBURAM1 – BUNDLE OF DOCUMENTS] MR KASSMAN: Mr Sirabis, you have produced in response to our request a bundle of documents andthat is the bundle that is under cover of I guess what you described as a minute – it is not dated -which you have produced to us today. The three page minute, is that the minute that you have produced today? We could just mark it as at today’s date? $: Yes today’s date will do. Those documents I think they are of some interest to the &ommission from the file that we have. Q: For the record we have your minute which we now date 6 July 2009. We have the seconddocument, it is a National Capital District Building Authority demolition order dated 6 September1996, addressed to John Tari. The next document is a letter, your file copy of a letter from yourself,Michael Sirabis, addressed to Henshi Engineering Pty Ltd dated 9 September 1996. The fourthdocument is a letter, this time from Sir Albert Kipalan, Minister for Lands addressed to HonourablePeter Yama, Minister for Transport and Works dated 24 October 1996. The fifth document is again aminute from Department of Transport and Works from yourself, Michael Sirabis, addressed to theacting Project Director, Hanuabada Bypass/Burns Peak dated 6 April 1999. Next document, thisappears to be a claim by John Tari Makabe addressed to the Secretary Department of Works dated 16March 2000. The next document, another letter from John Tari Makabe to Secretary Department ofWorks dated 3 April 2000. The next document is a minute, Department of Works and Transport. It appears to be just one page and it is dated 27 July 2002. The next document is another minute, alsoDepartment of Works and Transport by yourself, 6 August 2002. The next document is a letter fromMr Niggints, Secretary Department of Works and Transport addressed to John Tari, 6 August 2002.Next document is a minute again by yourself, dated 13 April 2004. The next document is a file copy,what appears to be a file copy of a letter from Francis Kuvi, acting Solicitor General to ThaddeusKambanei. Secretary Department of Finance dated 15 June 2004, and the final document is a letterfrom yourself Michael Sirabis, addressed to Department of Justice and Attorney General, attentionFrancis Kuvi, dated 15 June 2004. Commissioners, this bundle, if we could have it marked asSirabis1? THE CHAIRMAN: Yes. [EXHIBIT TENDERED – SIRABIS 1 – BUNDLE OF DOCUMENTS] MR KASSMAN: Thank you. Sorry Mr Sirabis, there is one document that appears to be the first pageand I wonder if the second page is missing, the minute of 27 July 2002? A: Which document is it?

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  • Q: It is the— A: I have actually numbered them, what number is on the corner? Q: You have numbered them, at the top, number 8? A: Right. [12:10 pm] Q: Is that a single page minute or is there a second page? A: It is the next page, it has my signature on, just one page, really two pages but I actually did notpick up the second page which has my name and my signature. Q: Thank you that is fine. MR MALARA: Mr Sirabis, can you tell us what you understand of this claim based on these recordsand what you know? A: All right, this particular project was actually handled by the project office specially established torun the whole project and it was called Hanuabada Bypass Burns Peak project and all Land acquisitionmatters actually came under the umbrella of that particular project office. Only in 1996, 1994, 1995,1996 when upon the completion of the project, those outstanding matters were referred to mybranch, the Survey and Lands Branch to help resolve those issues. So it was actually two officeshandling the same project; one during, one after. So when those unresolved plant issues weretransferred to my office so that I can help resolve those issues. That particular claim that we are actually discussing now, the claimant, John Tari, had some properties there. I believe according tosome documents which I have in the file and also in these documents, the arrangement was under alicense, simply meaning temporary occupation of a certain area which is gazetted for roads andreserve land. When the license is issued to a certain person to occupy certain areas under theirlicense condition, things that he has to put up is only temporary, temporary occupation. Once theState wishes to use that land, then that fellow has to move out voluntarily without claimingcompensation. That is the normal law under the license arrangement. From the information that wehave, my suspicion is this particular claimant was occupying a reserve land reserved for the roadsand drainage. In this particular case the State do not have to pay any compensation under licensearrangement. We may have to confirm this with Department of Lands and Physical Planning becauseit is their policy that governs this arrangement. The only person that Lands Department actuallycarry out a valuation upon request from Department of Works was Daniel Mapiria, I think his name.He was a leaseholder of some blocks within that area which valuation was done and he was paid. MR KASSMAN: Daniel Mapiria. A: For the claimant that we are referring to now, I have not seen any title, I have not seen anyevaluation as far as this claim is concerned. However, from the records and also from the letter wereceived from him that he actually claimed some K200,000 from the State. Under what arrangement,based on what documents, I have no idea. It was paid by the project office. THE CHAIRMAN: Paid by the project office? A: Project office, yes. That is as far as I know about this particular matter. MR KASSMAN: Mr Sirabis, essentially all the evidence that I guess you could assist the Commissionwith is set out in your minute, I notice your three page minute, would that be the case?

    A: Sorry? Q: All your evidence is there? A: Everything is there. Q: In there you speak of John Tari, which you have said I guess earlier is merely a licensee over adrainage and road easement. What are the circumstances that would lead to a grant of a license tooccupy? A: He may – it is just my assumption, my assumption could be wrong. He must have applied toDepartment of Lands and Physical Planningfor a license to temporarily occupy that drainage and road reserve. I must admit, if he has done that,I have not seen any documents related to that. [12:15 pm] Q: What would be the circumstances under which a license would be issued to anyoneto occupy land that is reserved or marked as an easement for drainage and road? A: I would say if the land is left vacant and there is no short term plan for that particular area and

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  • noone is actually doing anything about this, getting bushy, they may grant somebody a license totemporarily occupy to develop it. When the need arises when the State needs its land back, thenoccupier moves off. That is my explanation, I could be wrong. Lands Department are the best people to talk to. Q: But you are with the Department of Works? A: I am with the Department of Works. Q: And you would also be concerned with the retention of land particularly for easements to be leftunoccupied, would that not be the case? A: I would like to see that happen because to avoid unnecessary inconvenience when the State wishto move into develop, then we have problems with people demanding compensation and if we havesuch facility, if there is a license arrangement, I would say it should be discouraged. Q: From your records, I just quickly read through your statement, from your records, was your officeever – the Department of Works the office you hold, where you ever given notice of the intention bythe Department of Lands to issue a license to occupy that particular area? A: It is not for Department of Works to recommend or to request Department of Lands and PhysicalPlanning to issue license to certain people. It is just like you applying for a title over the Land,individual, they can go straight to Lands Department and enquire about this and apply. It is not forDepartment of Works to tell them or dictate to them, just like a general application of a land title. Q: So you mean whether it is Lands or Physical Planning or whoever, they can make a ruling or granta license over any land that— A: It is only Lands Department that has the power to do that, not Department of Works. Q: I am not suggesting may be Works has that power but saying in terms of notification for commentfor possible objection, is there a process in place that provides for that? A: If there is, I have no knowledge of it. Q: So from your records your office was never advised of the fact that there was an application before the Land, was it? Either the Physical Planning or — A: No, we were not advised. Only when construction moved into that area, then we came to knowthat such and such has actually happened, what is on the ground. THE CHAIRMAN: There were easements for drainage and? A: Road and drainage reserve. Q: Easements. Does the Lands Department have the right to issue licenses over roads; license to occupy road or —? A: As long as the intention of a fellow applying for the license is to occupy the land only ontemporary basis, I think. This information can be obtained from Lands Department. Q: There cannot be any road there at all, there cannot be a road in place. I mean there is no way they can issue a license for someone to occupy the middle of Poreporena Freeway now on a temporarybasis, is it? A: It can be possible if – I do not know how he actually obtained a license in the first place. Q: That is what we are really trying to find out. $: It was a long, long time during Minister Kipalan’s time. He was the Lands Minister then. Q: Was there a road there then? A: It was. It is been there all the time since. Q: We are talking about the same thing? I can imagine someone putting a building beside the road, license to occupy land beside the road but not on the road surely? [12:20 pm] A: Definitely, if you think that way, whether it is right or wrong to issue the license forsomeone to occupy the drainage reserve, really it is not for me to say whether it is right or wrong. I think this Department has their regulations and policies governing this particular instrument but the person happened to be there when we put a construction there. Q: Do not the drainage easements in favour of the Works Department? A: That is NCDC in Port Moresby as far as I am concerned. Q: NCDC? A: Yes. They have to issue the demolishing order. Q: I still cannot see that the Lands Department having seen a land interest to the NCDC could then in fact occupy— A: This information is based on the letter from Mr Kuvi, Francis Kuvi to Secretary Kambanei. He claimed that John actually is operating under a license. Department of Works has not

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  • seen a copy ofthat license or arrangement. Q: The license referred to or copied. A: Yes, actually you can just see from the correspondence that I came up with but I have not seenthe copy of the license. Again, I could be wrong. MR KASSMAN: As far as your records are concerned there is no title. You really cannot say whetherthere was a license or not? A: From the records they claim there is a license, we have not seen one so there is no record. I cannot claim that he has a license, I cannot claim that he has a title either. We have not seen one. Q: Mr Sirabas, at the time when you were involved obviously in examining this matter apart fromwhat is produced here in terms of your exchange of correspondence with Mr Kuvi, were there anyother meetings or attendance at the site to inspect the land that Mr John Tari was claiming? A: Yes, actually there is a report there, eight pages. There was a temporary makeshift church building, a small — Q: So you attended? THE CHAIRMAN: You went and saw the place yourself? A: Yes, actually nobody, my office actually drafted – I had to draft this minute. We physically inspected the site and we were chased out, physically removed with the vehicle smashed. Q: Why? A: They did not want us to do the inspection and so anyway the instructions were temporary makeshift church building, fencing and also a fielding area for some excavation work there. So thatwas the infrastructure that was visible at that time. MR KASSMAN: So you say you went in to inspect and you were chased away. Who did you attendwith? A: Max Palmer, the project director and also Jim Sloane, also an expatriate and myself. [12:25 pm] Q: All from the Department of Works? A: All from the Department of Works. Q: Was there anyone from the $ttorney General’s Office, Solicitor General’s present? A: No, because the project really was supervised by Department of Works. Q: Sure, but you had these letters, these letters claiming, making claims for loss or whatever. Did you ever you know on that occasion or any other occasion visit the site with a lawyer from the$ttorney General’s office or the Solicitor General’s office? A: No, we did not. Q: We have no further questions. THE CHAIRMAN: Thank you very much Mr Sirabas. Thank you for your attendance. We appreciate your time today particularly you have been very patient waiting to the end of the line. So thank youfor that. If we have any further questions we may come back and try and arrange another timesuitable to yourself. Alright, any other matters we can deal with before. Thanks very much Mr Sirabas, you are free to go. A: Thank you. WITNESS WITHDREW MR K$SSM$N: We could adjourn to either 1.30 or maybe prefer 2 o’clock. THE CHAIRMAN: We will try for 1.30. MR KASSMAN: 1.30? THE CHAIRMAN: Yes. LUNCHEON ADJOURNMENT INDEX PAGE NO MR BENNY BALEPA MALU, Sworn:…………………………. 3830 XN: MR GORUA…………………………………………. 3830 THE WITNESS WITHDREW……………………………………. 3864 MR CLEMENT KUBURAM, Sworn:……………………………. 3844XN: MR MALARA……………………………………….. 3844 THE WITNESS WITHDREW……………………………………. 3864

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  • MR JOSEPH NANEI, Sworn:……………………………………… 3864XN: MR GORUA…………………………………………… 3864 THE WITNESS WITHDREW……………………………………… 3880 MR CHRIS KABAURU, Sworn:…………………………………… 3880XN: MR MALARA ………………………………………… 3880 THE WITNESS WITHDREW……………………………………… 3885 MR MICHAEL SIRABIS, Sworn:…………………………………… 3886XN: MR KASSMAN…………………………………………. 3886 THE WITNESS WITHDREW……………………………………….. 3894 EXHIBITS PAGE NO Exhibit Tendered – Kuburam 1 – Copy Of Valuation Report……….. 3847 Exhibit Tendered – Kuburam 1 – Bundle of Documents …………… 3886 Exhibit Tendered – Sirabis 1 – Bundle of Documents……………….. 3887 TRANSCRIPT OF PROCEEDINGS Commission of Inquiry Department of Prime Minister & NEC P O Box 782 WAIGANI, NCD PAPUA NEW GUINEA Telephone: (675) 323 7000 Facsimile : (675) 323 6478________________________________________________________________________10 COMMISSION OF INQUIRY INTO THE DEPARTMENT OF FINANCE20 Mr Maurice Sheehan Chairman & Chief Commissioner AT TOP FLOOR, GOVERNMENT PRINTING OFFICE, WAIGANI,TUESDAY 7 JULY 2009 AT 10. 15 AM(Continued from Monday 6 July 2009) 30 MR CHAIRMAN: Yes, thank you? MR KASSMAN: Chief Commissioner, we have three matters listed for this morning in which we haveon each of the three matters we have a number of persons that we have asked to come forward toassist the Commission with evidence and with our einquiries. We would like to call firstly the matterNo 7, that is on the list for today, the matter of Network International Security Services and JerrySingirok –v- The State. Essentially, Chief Commissioner, 10 this is a matter that involved a claim in defamation arising out of some comments allegedly made by the former PNGDF Commander, MrJerry Singirok. Those are the, I guess the gist of the action as far as we are aware. The list we have noted three persons that the Commission requires assistance with evidence and they are JerrySingirok, Zacchery Gelu and the Honourable Byron Chan. We have been advised that Mr Singirok isout of the country and he will be available on Thursday. As for Mr Zacchery Gelu, yesterday wereceived some communication from Mr Gelu advising that he was unwell and in addition to that herequested proper service of a summons so we are attending to that today. We do have HonourableByron Chan here 20 present today. He is present here with his lawyer, Mr Jerewai, and we have had adiscussion and Mr Jerewai has asked for a day or couple of days to obtain information, documentation from the &ourt and from Mr &han’s former lawyers with a view to being of assistance to this Commission. We have no issue with that, obviously subject to Commission time we both areof the view that Friday would be adequate. THE CHAIRMAN: Friday? MR KASSMAN: This Friday. If we could have it called at 9.30 am? 30 THE CHAIRMAN: Yes, I see you Mr Jerewai, is that satisfactory to yourself? MR JEREWAI: Indeed, Chief Commissioner.

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  • THE CHAIRMAN: Very well, thank you for appearing with such notice and by advertisement in thePaper. We are short of time now. Thank you for attending voluntarily, we will adjourn it till 9.30 am,10th July. 40 MR JEREWAI: Thank you, Chief Commissioner. MR KASSMAN: Thank you. If for the record we could also have this matter adjourned for theevidences from Mr Singirok and Mr Gelu at 9.30 am on Friday? THE CHAIRMAN: Yes. MR KASSMAN: The next matter we would like to call is matter No 6, the matter Jimendi EnterprisesLtd and Bakanovi Transport Limited. Chief 10 Commissioner, we have here three persons, they areall named in our list, who are available before the Commission today. They are in the order as perour list; Mr Ben Pokanau, Mr Vari Fore and Mr Ambrose Vakinap. The three are here. For the recordMr George Minjihau has been advised, he has communicated through his office by email. We have received an email from Mr Minjihau advising that Mr Minjihau is unwell and he will advise us – herequested an extension to tomorrow that is Wednesday 8 July. THE CHAIRMAN: Very well, until tomorrow. 20 MR KASSMAN: We have no issue with that. With regard to the fifth person, name Jimmy Kendi, asCommission is aware, Mr Kendi is serving time in Kerevat and steps are being made to enquire as tohis availability to give evidence. But for the three that are here, we are happy to proceed essentiallyto have their evidence given previously to this Commission to have that evidence adopted by thisCommission in respect of this matter. We will call Mr Ben Pokanau. [10.20 am] MR BEN POKANAU, Sworn: 30 XN: MR MIROU Q: Good morning Mr Ben Pokanau, thank you for coming. Your full name is Ben Pokanau? A: That is correct. Q: What is your current status with the Department of Finance? 40 A: Currently, I am unattached. Q: How long have you been working with the Public Service? A: I have been with the Department of Finance since February 1975. Q: Mr Pokanau, you are aware of your coming to this Commission this morning to assist us in relation to the claim made by Jimendi Enterprises Limited?10 A: Yes, I do. Q: Do you recall sometime in 2007 you made a statement to the Commission? A: That is correct, sir. Q: Could I hand up the – we will show this document to – is that the statement that you preparedyourself? 20 A: Yes, that is correct. Q: When did you prepare this statement? A: On 3 April 2007. Q: At that time you prepared this statement you were still in the employ of the Department ofFinance? A: At that time I was with the Commission of Inquiry. 30 Q: As a result of that statement, did you give evidence before the Commission? A: I did. Q: Was that on 4 April 2007? A: That is correct, sir. 40 Q: Your evidence was basically in relation to your recollection of the claim in relation to JimendiEnterprises Limited? A: That is correct. Q: Out of the evidence that you gave on 4 April 2007, is there any additional information that youwould like to provide to the Commission this morning? A: No, sir, I do not think so. I think all the evidence I have provided 10 earlier still stands. Q: You wish to adopt this as part of your evidence? A: If the Inquiry wishes to yes, I would like to adopt my evidence given earlier. Q: If the Commissioner pleases, the transcript in relation to the evidence given by Mr Ben Pokanau is dated Wednesday 4 April 2007 at 11.42 am, from pages 249— 20 THE CHAIRMAN: Mr Pokanau, have you seen that transcript? A: I did sir, yes. Q: Yes, tender that, very well, that is accepted. [10.25 am] Q: Page 249 to 344 contains the evidence given by Mr Pokanau on the 4th. Chief Commissioner, could we also have that statement also marked as evidence provided by Mr Pokanautoday? 30 THE CHAIRMAN: If it is the transcript, you will refer to the transcript and Mr Pokanau has seen thetranscript, it is already recorded was it not? MR KASSMAN: His written statement— THE CHAIRMAN: His written statement? MR KASSMAN: He has a separate written statement, if that could

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  • be just marked as an exhibit. 40 THE CHAIRMAN: Written statement, I see, very well. MR KASSMAN: Marked Pokanau 1. THE CHAIRMAN: Yes, thank you. [EXHIBIT TENDERED – POKANAU 1 – WRITTEN STATEMENT BY MR POKANAU] 10 MR MIROU: Thank you Mr Pokanau. Unless the Commissioner has — THE CHAIRMAN: I have no further questions, thank you. Thank you Mr Pokanau. MR POKANAU: Thank you sir. WITNESS WITHDREW 20 MR KASSMAN: Who do you want to call next? MR MIROU: The next witness is Mr Vakinap. MR AMBROSE VAKINAP, Sworn: XN: MR MIROU 30 Q: Your full name is Ambrose Vakinap? A: That is correct. Q: You are currently working with the Department of Finance? A: That is correct. Q: What is your current occupation? 40 A: Currently, I am an unattached officer. THE CHAIRMAN: I am sorry, analysis officer? A: Unattached. Q: Unattached officer. MR MIROU: You received a letter from the Commission last week? 10 A: Yes, I did. Q: In relation to the matter involving Jimmy Kendi or Jimendi Enterprises Limited? A: Correct. Q: Mr Vakinap, you made a statement to the Commission of Inquiry in 2007?20 A: Yes, I did. Q: That brief that you prepared, did you provide it to the Commissioner? A: I did submit it to the Commissioner. Q: Could you look at this document and just tell the Commission what is in that particular brief?That brief is dated 26 March 2007. A: Yes. 30 Q: It is a brief to the Chief Commissioner? A: That is correct. Q: It reads, “Statement of circumstances pertaining to my involvement with the fraudulent payment to Jimmy Kendi of Jimendi Enterprises.” That is the title of the brief? A: Yes. 40 Q: In that brief you highlight what you did with regard to that claim? A: The content reflects whether I did at the time when I was asked to assist, yes. Q: Is there any additional information that you wish to add on to this brief this morning? A: No, I feel I have exhausted what I have to say and this is my statement 10 and it will remain as it is. Q: Chief Commissioner, we wish to tender that statement as part of the records? THE CHAIRMAN: Vakinap 1. [EXHIBIT TENDERED – VAKINAP 1 – STATEMENT BY MR VAKINAP DATED 26 MARCH 2007] 20 MR MIROU: Mr Vakinap, is there any additional information that you wish to say this morning? A: Not at this point in time, no, I do not think I have any more to say. Q: Thank you Commissioner. MR KASSMAN: You say not at this point in time. This really would be the final opportunity. 30 A: Really I am actually a little bit biased there but I am saying there is nothing more that I can say, thank you. Q: Thank you. THE CHAIRMAN: Very well, thank you Mr Vakinap for coming voluntarily, thank you. MR KASSMAN: Thank you. 40 WITNESS WITHDREW [10:30 am] MR VARI FORE, Sworn: XN: MR MIROU Q: Thank you. Your full name is Vari Fore? A: That is correct. 10 Q: What is your current occupation? A: Currently I am the Second Secretary to the Ministry of Labour and Industrial Relations, Your Honour. Q: Prior to that have you served in various capacities in the Public Service? A: The latest I served between 1999 and 2000 was as acting Secretary, Department of Defence. 20 Q: Mr Fore, are you familiar with the claim in relation to Jimendi Enterprises? A: Yes, I am familiar with the claim. Q: What is this claim about? A: It is a claim that Jimendi Enterprises submitted to the Department of Defence in about 2000 or 1999-2000 and it also was subjected to a 30 National Court case which I attended in Rabaul and Ibelieve the owner of Jimendi Enterprises was prosecuted and gaoled.

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  • Q: Mr Fore, in December 1999 you were still the acting Secretary for Defence? A: That is correct, I was acting Secretary for Defence. Q: Mr Fore, I would like you to look at this document, it is a letter. That letter, was it a claimsubmitted to the Department of Defence by Mr Jimmy Kendi? A: Yes, that letter came from Mr Jimmy Kendi. Q: That claim was submitted by Mr Kendi to the Department of Defence at that time when you werethe Secretary? A: The letter was submitted to the Department of Defence. 10 Q: Following that there was a number of letters or follow ups made by Mr Kendi which I would likeyou to look at so that you can just confirm to the Commission if you have also sighted those letters? [10:35 am] A: I really cannot recollect this because normally they would have been stamped with theoffice of the Secretary and so I cannot really confirm it if it did appear. Q: Thank you Mr Fore. I want you to look at this requisition and the 20 general expense form. A: Your Honour, with the requisition itself it has my signature. I signed the requisition forexpenditure, however the general expenses form does not have my signature. Q: That requisition form is dated? A: I signed this as Approving Officer on 17 October. The other figure does not appear but I think itis 17 October 2000. 30 Q: You signed that but the general expense form has not been—? A: Yes, I did sign the requisition for expenditure as Approving Officer. Q: After that do you recall having anything to do with that particular form? A: What I recall I signed this after getting advice from Solicitor General and also from Defence, Ithink the legal officer, that the claim Jim hadsubmitted was in order. So in order to verify for payment I had to sign this and submit it to theDepartment of Finance for payment. Q: When it was submitted to the Department of Finance, were you aware that the payments weremade? A: I was not aware because in early January 2001 I was replaced as Secretary for Defence so I was notaware payments were made. Q: So you can confirm that that is the only requisition you signed at that 10 time? A: I can confirm that this is the only requisition I signed at that time. MR KASSMAN: We need to have the documents marked Chief Commissioner. We will have them marked as a bundle as Vari Fore 1, as a bundle and we will have them now described for the record. [EXHIBIT TENDERED – VARI FORE 1 – BUNDLE OF 20 DOCUMENTS] MR MIROU: Chief Commissioner, the first document that in on that bundle is a letter dated 14December 1999 by Jimendi Enterprises to the Secretary making a claim against the Department ofDefence Force, it is a two page letter. The second letter is dated May 2 of 2000, also a letter fromJimendi Enterprises. It is a follow up from the claim that was made earlier on, signed by Mr JimKendi, the managing director. Attached to that is a calculation of claim by Jimendi Enterprises for theunlawful use of heavy equipment, outstanding of 3.7 million. The third is a letter from JimendiEnterprises, 30 also a follow up on the outstanding claim to the Secretary, Department of Defence,which is undated and also as an attachment with the claim to the value of 4.2 million. The last twodocuments is that requisition for expenditure which is dated 17 October 2000 and general expensewhich is incomplete and unsigned. Those documents will comprise Vari Fore 1. [10:40 am] Mr Fore, is any additional things you wish to raise this morning or? A: No, I have nothing to add on, thank you. 40 THE CHAIRMAN: Thank you for appearing on such short notice Mr Fore and assisting us. Thank youvery much. WITNESS WITHDREW THE CHAIRMAN: Any other matters? Do we have any other matters?

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  • MR MIROU: Yes, we have another matter. If we could adjourn for a short break. 10 THE CHAIRMAN: Very well, I will stand down briefly. SHORT ADJOURNMENT [10:50 am] THE CHAIRMAN: Yes. Mr Keta, thank you for appearing. You have been very patientyesterday and we thank you for coming back this morning. MR KETA: Thank you Chief Commissioner. 20 MR GORUA: Thank you Mr Keta. For the record could you — THE CHAIRMAN: I have said – yes, thank you. I am very pleased that he came back after we gavehim such a delayed response yesterday. MR GORUA: If Mr Keta could be sworn? THE CHAIRMAN: Yes please, Togi. MR DAVID KETA, Sworn: 30 XN: MR GORUA Q: Mr Keta, could you state your full name for the record please? A: My name is Mr David Keta. Q: You are a lawyer by profession? A: That is correct. 40 Q: Mr Keta, you are obviously aware of the matters now before the Commission that require yourattendance? A: Yes, I am very aware of it. Q: Thank you. Documents before the Commission reveal that you acted for several plaintiffs inregard to the same set of facts which gave rise to the proceedings instituted by one Mr Benny Balepain his personal capacity and a proceedings instituted by one Lynette Malu and Others 10 and theother set of proceedings which documents show that you initially acted for, that is the proceedingsof Yakop Pape and Others. Could you tell the Commission what you know about the case? A: Yes, alright. Actually I am from, half a kilometre away from the – I come from the same areawhere the raid occurred. My village is half a kilometre away. The raid occurred sometime in 1990and by then I was working with the Solicitor General’s office, about 1991 and 1992 I used to go up toCourt circuits in Mendi and Hagen. I normally visited the villages. So I was well aware of this raid, itwas a raid in fact. Benny 20 Belepa is about 15 kilometre away from where the raid occurred. His village is Kwalilombo village, it is about 15 kilometers away. He is married to my cousin sister who isLynette Malu and through marriage he built a small trade store, his wife then teaching at thecommunity school at Wafi that is about another three kilometers away from the raid.

    THE CHAIRMAN: He built a trade store three kilometers away from the raid? 30 $: No he built the trade store at his wife’s village, that is $pote village. THE CHAIRMAN: Can you spell that please? A: A-P-O-T-E, Apote village. There were two villages raided by the police, the Apote village andOdere village. Odere, O-D-E-R-E, Odere village. MR KASSMAN: Sorry, spell that again? 40 A: O-D-E-R-E, Odere village. Q: The other one Apote village? A: Apote village. It is about two kilometers apart, those villages. In Apote village Benny Balepa hada small trade store. I think in that store he used to keep some tools and some coffee bags and a fewcargo. In fact he was not really residing, living in that house but he had some boys living in thereand that building the value was at that time was about probably K10,000 including the cargo inside.In fact that was actually 10 burnt down by the police at %enny’s trade store. So in $pote village that isthe only building it was burnt down as far as I know but at Odere village there were a number ofproperties destroyed, trade stores and coffee gardens and all these things were

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  • destroyed and Bennypursued his own claim for the burning of his trade store and he probably succeeded ChiefCommissioner before you in Mendi. [10:55 am] He was awarded about K35,000. At the same time being married to my area he was instructed by those villagers who were affected to seek a lawyer’s assistance to file their claim but%enny did not put these 20 people’s claim together with his but he went ahead and claimed himself so the people who actually suffered had to wait about four and a half years before their claim waseven registered in the National Court, four and half years and the time limitation for a claim againstthe State is about six years so these people had to rush around looking for lawyers to do their claim.By then I left the State. I was working with Rei Vaea Lawyers so we started taking instructions torepresent those people really affected. So I instituted legal proceedings in the National Court underWS 201 of 1995. Yakop Papi being the main plaintiff and 48 Others and those people are actually from Odere village. $pote I have 30 already disputed that only property destroyed was %enny’s, nothis wife’s too, his wife did not have any property. THE CHAIRMAN: Sorry? A: His wife did not have any property so his wife probably never pursued – Lynette Malu. MR KASSMAN: Sorry, you said Lynette Malu? 40 A: Lynette Malu, Balepa their names are changing, Benny uses a number of names. Q: You are saying that for her none of her properties were destroyed? A: None of them. She was actually a community school teacher so you know she was teaching out ofher village. Q: She? 10 A: She was teaching out of her village so she did not own any property. Q: So you said she was teaching at a school where? A: At the time of the raid she was teaching at Katloma, Katloma community school. Q: You spell that please, K-A-T—? A: KA-T-L-O-M-A, Katloma which is between Kagua and Erave. 20 Q: How far is that in terms of distance or walking time? A: Distance about 15 to 16 kilometres. Q: Away from Odere and Apote? A: Yes, away from them. She was teaching there. While teaching there Benny somehow met her sothey get married so Benny became our tambu in our custom. Then sometime 2000 she moved downto Wabag 30 community school. Lynette moved down to Wabag community school she was teachingthere then. While teaching there Benny was also staying with her so they built that small trade storeat Apote. That is the store that got burnt down and also in our custom, we are a paternal society.Once a woman gets married to a different tribe, away from us she has does not have that propertyrights to come back and claim the property rights so and even Lynette to say to represent 48 peopleunder their names that is against our custom. Anyway, then I start this because time limitation wasapproaching so I was pity for these people who suffered the loss so I started the proceedings againstthe State 40 under WS 201. Then I already got the default judgment against the State because the State failed tofile their Defence. After I obtained the default judgment the — [11:00 am] MR KASSMAN: I am sorry, Mr Keta that WS2 one of 19? A: 95. Q: 1995. That is Yakop Pape? 10 A: So I physically visited back in the village and assessed the damages done and then I categorisedthe damages done to each one of the plaintiffs and the amount I assessed the loss was aboutK600,000. Probably if you have a copy of the writ you will see that K600,000 was claimed for the 48people I have said presented them. Because I come from there I know everybody by name if

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  • anybodylost properties I would have included them. Villagers from Apote I would have included them. If Lynette Malu has lost any properties I would have included them in this writ but just because I wasonly concentrating on people who lost their properties. After I obtained the default 20 judgment — Q: Sorry, the assessment you did you visited, which village did youvisit? A: I visited Apote and Odere. Q: But the assessment of all damaged properties or whatever was of properties in which village? 30 A: Apote, Odere, sorry. Q: Odere? $: $pote, I said only one property was damaged, burnt down, that is %enny’s, that is all, nothing else. Q: Yes. THE CHAIRMAN: Sorry, how many in Apote, only one building burnt down no other properties wasdamaged? A: No other properties. Q: They only damaged property was in Odere village? A: Odere village, yes. Q: Yes? 10 A: After I entered default judgment I think entered default judgment on 31 July 1995 and JB Nanei and %enny %alepa started complaining against me, saying, “look this is my people’s claim we were supposed to issue the writ, we have been given instructions, why you are interfering with these people’s claim.” Then I said, “no, you have been sitting there for four and a half years, you did not do nothing and the time limitation is approaching. This people instructed me to file their writ so Idid. So I warned them. I wrote a letter on 23 September 1996 to JB Nanei lawyers— 20 MR GORUA: Sorry, you have a copy? A: I have a copy. Q: I think we have a copy but I will check against our – so what is thematter dated? A: Dated 23 September 1996.30 Q: And that is addressed to? A: JB Nanei lawyers. Q: That is the letter under the letterhead of Rei Vaea lawyers? A: Yes, I was working with Rei Vaea lawyers then but I signed that letter. Q: And has about four pages, is that correct? 40 A: Sorry? Q: Four pages? A: Yes, four pages. [11.05 am]Q: Commissioner, we have a copy on the file. Perhaps we would like to firstly tenderthis document through Mr Keta. If it could be marked—10 A: In my letter I expressed the concern about— Q: We will just mark the document Keta 1. [EXHIBIT TENDERED – KETA 1 – LETTER DATED 23 SEPTEMBER 1996 BY MR KETA TO JB NANEILAWYERS] A: They have been threatening me, they were referring me to Law 20 Society— Q: Sorry, you said they were threatening you? A: Yes, I expressed that concern in my first letter. They referred me to the Law Society just because they say I was interfering with their claim. Then I said, “no, I am not interfering with their claim. I am representing my people and I stand by it.” I expressed that. The second place I pointed outclearly that there is a duplication in our claim. Alright and I explained that in my second page. 30 MR KASSMAN: Duplication? A: Yes. Q: Of what? A: Because I have already filed the writ. After I filed the writ, they filed another writ after I alreadyentered into default judgment against the State. So some of the names which was included in WS201 of 1995 40 were also included in WS 622 of 1995. You see, that is under Lynnette Malu’s claim. MR GORUA: Sorry, Mr Keta, some of the plaintiffs in the proceedings which you filed are the sameones which were included in the Lynnette Malu file? A: Yes.

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  • Q: It is WS 662? 10 A: 662. They filed those proceedings on 4 August 1995 but then I had already obtained defaultjudgment. Then I told J B Nanei and Benny Balepa, “I have already set proceedings, judgment was infavour of these clients.” I said, “withdraw that WS 662 of 1995.” I told them and in fact I expressedthat concern in my letter but they insisted they wanted to go ahead so instead of J B Naneiresponding to my letter and Mr Benny Balepa start responding to my letter in his letter dated 1October 1996. That is the response I got from Benny Balepa. 20 Q: Perhaps Mr Keta, we mark this letter Keta 2. It is a letter by Mr Benny Malu to David Keta of ReiVaea Lawyers, letter dated 31 October 1996 and consists of three pages. A: Yes. [EXHIBIT TENDERED – KETA 2 – LETTER BY MR BENNY MALU TO DAVID KETA OF REI VAEA LAWYERSDATED 31 OCTOBER 1996] 30 $: %enny’s letter is in response to my letter of 23 September. He said no, he said he cannot withdraw the case, he will continue. The claim is made by his wife so it is pretty hard to convince him towithdraw the other proceedings. Q: Mr Keta, in your first letter, this is letter marked Keta No 1, the first letter which you tendered in,that letter you also copied to several other persons including the Solicitor General— 40 A: Yes. Q: And you raised serious issues concerning this case? A: That is correct. Q: You also made reference obviously to the claim by which Mr Balepa instituted personally? A: That is right. 10 Q: Did you receive any response from the Solicitor General? A: No response, I did not get any response. Q: At that time are you able to recall who was the Solicitor General? [11.05 am] A: Francis Damem, I may be wrong but Francis Damem was the Solicitor General then. Q: And maybe in respect of the claims which you were pursuing, the Yakop Pape proceedings, whowas the lawyer on record acting for the State? A: I think Mr Pokia. Yes, Mr Pokia, I do not know his Christian name, he is from Goroka, he works with Mirupasi Lawyers now. Mr Pokia, P-O-K-I-A. I have a number of correspondence with him tooso I recall that he was the lawyer acting for— Q: So you never received any response— 30 A: Morris Pokia. Q: Morris Pokia? A: Morris or Murus or, I am confused. Q: Yes Mr Keta? A: Then he insisted he wanted to go ahead and I insisted I wanted to go ahead so I entered defaultjudgment, my case was transferred to Hagen for proper assessment— Q: Sorry, Mr Keta you said that instead of Mr Nanei responding, it is Mr Mr Malu who is responding,at any stage did you ever contact Mr Nanei or if you like make an appointment to talk with him andresolve this for instance? A: Yes, I did attempt to sit with him, talk with him, I did. 10 Q: What was the outcome? A: I do not know, Mr Nanei probably was receiving his facts from his client Benny so they insisted they wanted to continue with their own case and they wanted me to continue with my case. So therewas no – we could not comprise and I insisted I continue because I thought that was best for mypeople and those were the people who actually suffered not Benny Balepa or Lynnete Malu. So thenmy case was after the default judgment was entered because there was assessment 20 and witnesseswere supposed to be called so the matter was transferred to Mt Hagen and Paulus Dowa Lawyerswere doing assessment. After assessment late Hinchcliffe J awarded Yakop Pape about 600,000. Q: Sorry Paulus Dowa or Paulus Kunai Lawyers? A: Paulus Kunai Lawyers, yes, awarded K600,000. This is a claim roughly which I claimed in thestatement of claim. 30 Q: Mr Keta, Paulus Kunai Lawyers, did you cease to act at that stage or you instructed them to – — A: I did not file any documents ceasing to act, I transferred because Benny was threatening me too

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  • inMt Hagen. You see that is the problem I had because his case was involved, my case was involved,they are the same parties involved so sometimes there were clashes in Mt Hagen District Court. Sothat is out of here I do not want to attend myself in Hagen so I transferred the matter to KunaiLawyers for assessment only. 40 MR KASSMAN: And they were acting as your agent? A: Yes, something like that. Q: Or were they acting directly for the plaintiffs in WS 301 of 1995? A: What I told them was, alright this is for assessment, instructed my clients that Kunai Lawyers willdo it for you. 10 Q: Was Kunai Lawyers acting as their agent for Rei Vaea Lawyers which is where you were working? [11:00 am] A: When Kunai lawyers engaged —- I was doing my own, I ceased to act, work with ReiVaea lawyers may be 1996, 97. MR KASSMAN: So Kunai lawyers took instructions directly from the plaintiffs, Yakop Pape and others, is that right? A: Yes. What I, mark you, is Benny Balepa appears to be a front man, he 20 used Lynette Malu as afront to make a claim which is not true and I tried to warn him that this is a fraud, it is fraud againstthe State but he did not want to listen to me instead he wanted to attack me and all that so I let it go.This K4.5 million, Mr Commissioner, I do not think this is based on actual loss in my debits, it is afigure based in Moresby, drawn out from the blue and that is how it came but envisaging himself toconfine me. MR GORUA: Mr Keta, certainly the documents we have on file indicated you wrote several letters tothe Solicitor General and relevant authorities 30 pointing out— A: Yes, I did write to the— Q: Again, in one of the letter you wrote to the Solicitor General, it is a letter dated 3 August 1998which is addressed to the Solicitor General again raising same issues and in that letter if I can justquote at the back you stated when the motion you recommended that a motion be filed through todismiss the proceedings filed by Lynette Malu because it was a duplication and all those and youstated that, “when the motion is 40filed I am willing to assist you and I will file all affidavits to that effect.” You also stated that despitewriting several letters, did the Solicitor General ever come back to you? A: Nothing, if they did, I should have records in my file. I see the records I did not make anyresponse, I only write to Auditor General warning them this is a duplication I did write to Registry ofNational Court warning them that they should not enter two default judgments in the same claim; itis a duplication. I warned them too, then my warning letters were never adhered to. 10 Q: Did you ever personally attended and say talk with the Solicitor or the lawyer for the State? A: Not personally but I think my letters being aware of it so. Q: The matter which, the proceedings in which you insisted was obviously – went for full trial andjudgment was entered. A: Yes. 20 Q: And the Supreme court stated the one that Lynette Malu was to be settled out of court by way ofdeed of release for K4.5 million? A: Yes, that really surprised me because it appears at some stage in the newspaper this guy wasclaiming K4.5 million, and well he did not have a business worth K4.5 million in my village so howdid he come about this K4.5 million? So all along you see I warned them this is a fraud. The Commission can note that, thank you. 30 [11.20 am] Q: Mr Keta, our records show that from the 4.5 million about K3.8 million had been paidout, that is the matter of Lynnette Malu. Lynnette Malu filed an affidavit. This time she files it under the Firm of Nandi and Company Lawyers. It is an affidavit sworn and filed on 26 April 2005

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  • in theMount Hagen National Court. In this affidavit she mentions about how some of the monies weredistributed and in this affidavit she states that some of the persons who got paid she says were nonplaintiffs. Non plaintiffs were paid as they come from the same villages and lists them down, churchgroups K2,200, church land K600, Maria Agaka K1600, Pastor Mandi K200, Komba Akela K200, TerryApaio 40K2000, Emanogo Apoio K1000, Ramia Repa Epo K200, Wapi Andaiyo K200, Apai Anare K200, RatiNakisi K400, road maintenance K1200, escort security 2000, transport and accommodation K20,000,Rumape Yawe K2000, Justin Meli K2500, Mandia Yawe K200, Tony Pagu K1500, Nugula Pangu K200,Robert Poyasi K200, Mando Apaiyo K3000, Rowo Apoio K200, Lapi Apoio K200, Repo Nosi K400,Yapi Lorea K200, Ero Rorea K200 and Imanai Alisi K200. Are you able to confirm with these people? A: Most of them by name I can recall, I can figure, I know their villages 10 down in my area but as Isaid why should they benefit of those monies if their properties were not lost. Those people were mypeople so I would have listed their names in my writ and make a claim against the State. I excluded them because they lost nothing but if Lynnette Malu had put some people for the money then themoney comes from a fraud claim. They lost nothing. MR KASSMAN: Mr Keta, just generally speaking, you say you attended yourself and spoke withvarious claimants, people in the village. You are actually a resident here in Port Moresby? 20 A: Sorry? Q: You are a resident here in Port Moresby? A: I am. Q: You say you travelled up. How did you – you commenced your action you say four and a halfyears after? 30 A: Yes. Q: How did you have verification of the actual destruction and ownership of houses? How did you – — $: I have said that when I was working with the Solicitor General’s office I used to travel to Mendi, Tari, Hagen to attend to court cases and then I visited my village and at that time you could actuallysee the destruction done in those areas. So, before I took up instructions Iwas well aware of the destruction done in the village. I was there always travelling. Q: You travelled regularly there? A: Yes. Q: So you were satisfied from just your discussion? A: Yes. 10 Q: Did you get sort of some statements from the Police or from like a village peace officer, villagecouncillor, village magistrate? A: Yes, we sit down and talk, in fact get the particulars from the people, sit down in the village andmaybe two or three days discuss. Q: So your discussions were done in the presence of people of authority? A: Yes. 20 Q: From your attendance there, was the same process adopted by any other claimants or were therelawyers before they formulated their claims; the other two claims? A: I do not know whether Mr J B Nanei attended the village itself, that is between Benny and himselfto make arrangements to visit or whether Jack Nouairi attended to make assessment and interviewthe claimants, that I am not aware. I will not say anything on that. 30 Q: Did you speak with the Police in any matter? Did you yourself speak with the Police? A: I actually know the policemen who did the – they are based in Kagua, so I know. Q: So did they contribute to any discussion about the duplication of claims or did they do anythingabout it? [11:25 am] A: With the police we never made aware of this duplication claims. We were aware there was a duplication but the duplication issue was between me, Benny and J B Nanei lawyers and several

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  • like Solicitor General’s Office, Registrar, I mean this people are aware this is a duplication. Q: Sure. MR GORUA: Mr Keta, you may have been in the hearing yesterday, Iput a question to Mr Nanei yesterday, stating that Benny and Lynette are 10 married and some of the properties that Benny claimed were destroyed in most of the claim were with matrimonial properties and so there would not be much difference and Lynette’s claim would obviously be as you put it would be a duplication. Mr Nanei said that was not correct, Lynetteobviously had other properties that were destroyed. What would you say about it? A: She was a teacher, public servant. If she had started any business like poultry or whatever business I mean there is a conflict in this. Should be teaching instead of business. So I do not knowwhat property she 20 had. As far as I know she did not have any property. If she had any property %enny %alepa should have taken up the loss in his first claim. So why did he miss out his wife’s claim and he went himself and there is no reason. So I doubt that she had any property. Q: Mr Keta, you are a lawyer by profession. Another question that we put to Mr Nanei was that hesaid that some of the claims which he pursued in the proceedings Balepa Benny, where not sought inthe pleadings, in the statement of claim and as a result he instituted separate proceedings to claimfor what that was not asked for in the earlier proceedings. You 30 have any comments to — A: It is a normal use of practise. If you want something from the court you plead; you do not plead,you get nothing. So why come back and do it, miss out something and come for the second biteafter some years. THE CHAIRMAN: Yes. You make your claim once— A: That is right. 40 MR KASSMAN: Sorry, in the proceeding you commenced where you say It went to assessment of damages before Justice Hinchliffe, the award was around K640,000? A: That is my guess. Q: No, I am saying the award of the court? A: Yes, but that is what my clients told me but the proper records will be from the Kunai lawyers. 10 Q: Sure. A: Because I have obtained that they got two lots of payments in Finance so that just amounted toK600 something thousand so I am pretty aware that around that figure. Q: It is on the copy, we have a copy of the certificate of judgment approximately K640,000. The deed of release signed in the Lynette Malu action was K4.5 million, you are aware of that? 20 A: Yes. Q: And in the claim by Benny Balepa that also went on assessment of damages, it was K35,000, fromvery I guess extreme discrepancies, assessments. And you say, but you would maintain that for theassessment done on the claim that you initiated for your Yakop Pape, of K640,000 that was the onlytruthful claim. Is that what you would be saying? 30 A: Yes, I am saying that I maintain that those claims are categorised, that assessment was done onthem a particular claim I have done on the individual plaintiffs. Q: Sorry, and I am just comparing that with the Lynette Malu deed of release that was signed forK4.5 million, just as an ordinary person you would say that is highly outrageous, would you say that? A: I have already maintained that that is – I mean I have never seen a business loss with that muchmoney. 40 Q: What is the population of Odere village? What would be the population be? A: About 400. Q:

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  • 400? [11.30 am] A: Yes, because some of the people were not included in the writ because they did not loose anything so. 10 Q: Maybe another appropriate question would be how many houses would there be in the village? A: I see. Each individual would own a house. Q: Yes. How many houses would there be, 30 houses 50 houses? A: About 50, 60 houses – families living, three, four families living together. 20 Q: Are they all semi permanent or permanent or traditional built? A: Some people who start business they have semi permanent buildings. Q: Yes, roughly how many? A: About say about fifteen. Q: Fifteen semi permanent? 30 A: Yes. Q: Is it hooked up with electricity and water or? A: No, the electrification does not go there so. Q: No, neither water? A: Yes. 40 Q: So no services whatsoever, no utilities? A: No. Q: Electricity, water, telephone, nothing, sewerage? A: No. Q: Is there any business or major food crop plantation or economic 10 activity? A: Coffee is the main one. Q: Coffee. A: Coffee is the main one, yes. Q: From my perusal of the document there is no claim for, even in fact for actual substantiate youknow I guess a coffee entity in coffee either as a 20 buyer or a seller or sorry a buyer, producer ofcoffee, coffee beans in terms of a market, commercially driven sort of set up? A: Yes, each individual grow their own plot of coffee trees. Q: Sure. A: So when the opportunity arises the coffee buyers come they go to the main road and start sellingit. 30 Q: Sure, alright. A: Yes. MR KASSMAN: No further questions. THE CHAIRMAN: Thank you very much Mr Keta for your giving evidence and for coming a secondtime to do so. MR KETA: Thank you. 40 THE CHAIRMAN: Thank you very much. I stand adjourned. WITNESS WITHDREW MR KASSMAN: Chief, just one for the record. In one of the matters that was listed today, the MatterNo 8, Network Constructions Ltd and Fred Punangi and the State, just for the record we did receivecommunication 10 from Mr Steven Raphael who is asked to assist the Commission with evidence inhis capacity as the former Secretary at that time of the Department of Defence. Mr Steven Raphael has communicated with us by way of a letter dated 3 July 2009. Mr Steven Raphael is now theprovincial administrator, West New Britain Provincial Administration. He has provided information inthis letter which we believe is adequate for purposes of our inquiries and if we could have thatmarked as a Steven Raphael 1. That is in respect of the Matter No 8 on our list, NetworkConstructions Ltd and Fred Punangi and the State. 20 THE CHAIRMAN: Yes, thank you. [EXHIBIT TENDERED – STEVEN RAPHAEL 1 – LETTER FROM MR STEVEN RAPHAEL TO COI DATED 3 JULY2009] MR KASSMAN: Other than that we have no further matters for today and if, sorry, we do havematters for 1.30 p.m. THE CHAIRMAN: 1.30 pm. Thank you. 30 LUNCHEON ADJOURNMENT [2.00 pm] THE CHAIRMAN: Mr Mirou? MR MIROU: Yes, thank you Chief Commissioner. This afternoon we have Matter No 10, that isManoburn Earthmoving Limited -v- The State. Mr

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  • Commissioner, that matter will be officially adjourned to next week Tuesday. 40 THE CHAIRMAN: Yes. MR MIROU: Matter No 9 — THE CHAIRMAN: Is there a reason for that? MR MIROU: It is a matter that Mr Kerenga Kua rang in relation to this matter which does affect a member of Parliament who is actually in mourning so this matter we have had the matter stooddown. 10 THE CHAIRMAN: I see, yes, alright. MR MIROU: The Matter No 9 Chief Commissioner, is a matter that – present this afternoon is MrKambanei who has responded to our letter requesting assistance in relation to the claim made inresponse to the – Mr Thaddeus Kambanei and myself have had discussions prior to this hearing andMr Kambanei wishes to make some statement in relation to it. THE CHAIRMAN: Which matter are we talking about? 20 MR MIROU: Kareana Estates, Matter No 9. THE CHAIRMAN: Yes, Mr Kambanei. Thank you for coming Mr Kambanei. MR KAMBANEI: Thank you Chief Commissioner. The matter for Kareana Estates I have hadpreliminary discussions to suggest that if I may make these submissions at least in written becausebasically the questionnaires actually put to me are questions that are pretty the same in my 30response in the other matters as well and so I thought it would be appropriate for me to make thissubmission just to advice, to assist the Commission of Inquiry in relation to what transpired out ofthose payments. THE CHAIRMAN: That would be very useful, thank you very much. Very well. How long do youthink, have you discussed how long that will take? We are very conscious Mr Kambanei of our short term. MR KAMBANEI: I should have it delivered to the Commission of Inquiry by end of the week. 40 THE CHAIRMAN: Very well, to Friday. Thank you for attending. MR MIROU: Yes. Also in attendance is Mr John Kumura who has also responded to our letter requesting assistance and likewise my friend Mr Kumura has the same application. If he may — THE CHAIRMAN: Is this in the same matter, is it? MR MIROU: Yes. He has produced some documents to me yesterday 10 which very much describes in detail what Mr Kumura did during his time as the acting Solicitor General in relation to this claim.

    THE CHAIRMAN: Yes, is Mr Kumura here. Are you asking him for information regarding the same– -? MR MIROU: In relation to the settlement of the claim. THE CHAIRMAN: Of KareanaA 22 MR MIROU: Yes.

    THE CHAIRMAN: Yes, and Friday Mr Kumura? MR KUMURA: Chief Commissioner, I have been called to assist if possible and I delivered somedocuments to my friend. I can give evidence here or otherwise I can simply submit a writtenstatement later during the week. THE CHAIRMAN: Very well, it is certainly up to yourself. Have you 30 examined the documents yet? Are we ready for— MR MIROU: Yes, I have examined the documents. If Mr Kumura wishes I think we can hear Mr Kumura. THE CHAIRMAN: That would be fine. Would you like to, you are here now. Yes, thank you. Swear him. 40 MR JOHN KUMURA, Sworn: XN: MR MIROU [2:05 pm] Q: Thank you Mr Kumura. Your full name is John Kumura? A: Yes. Q: How long have you practiced as a lawyer?10 A: Since 1991. Q: During that

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  • period have you worked at various places? $: Yes, I started with ‘efence ‘epartment 1991 to 1993 and I moved to the Solicitor General’s office in 1994 and I have been there since, up until 2007 when I left. Q: Mr Kumura, you were given a letter in relation to a claim that was made by Nelson Wahune who isthe principal of Kareana Estates 20 Propriety Limited? A: Yes. Q: Are you aware that this matter had come before you whilst you were working with the Solicitor General’s Office? A: Yes, during my time as lawyer there and also at times when I was acting Solicitor General I did come across the file on that claim. I cannot clearly recall the details but I understand it was a claimarising 30 out of the crisis in Bougainville and the plaintiff basically claimed for loss of business Ibelieve. It was a claim I recall specifically because I did direct at that time as acting Solicitor General,I directed one of the senior lawyers there, Jimmy Bokomi to further defence the claim which he didfile. The defence was I understand, basically the claim was statute barred under the Fraud andLimitations Act. I also recall a certain Thomas Mane. THE CHAIRMAN: Sorry? A: A person by the name of Thomas Mane who approached me on this matter requesting if we couldsettle the matter. I basically said no because of the defensity of the file which is solely a defence inlaw any way. At that time my view was that the claim basically we could have dismissed it and that isas far as I can recall because after that what transpired after that I cannot recall but I only know thatthe claim was settled, that is all. [2:10 pm] Q: Do I understand you mean that the time you were talking about this claim that cameto you, past you, you were the acting Solicitor 10 General? A: I was acting Solicitor General on a number of occasions and the file was there for some time. As acting Solicitor General of course I had carriage of all files in that office so I knew what was going onbut those times when I was simply a lawyer there, I cannot say much about a file. But at the material time when the file came across me when I was acting Solicitor General I directed that defence be filedand there was a defence filed by one of our lawyers there, Jimmy Bokomi. At that in my view theclaim was – we could have defended 20 it, that the defensity file was solid. MR MIROU: Section 5 notice was also given? A: The details, I am not pretty sure. Q: I think from the actual writ section 5 notice was given for this particular claim with Mr %okomi’sbrief to you. $t any stage after Mr %okomi’s involvement as the officer in charge of this particular claim, at any time did he consult you and then did you consult the Attorney 30 General on the claim? A: I do not recall consulting the Attorney General on the matter. All I do recall is that I did discussthe matter with the action officer Jimmy Bokomi. I gave him the instructions to file a defence whichhe did and I also recall that Jimmy Bokomi basically reported to me that the file went missing for sometime and I think today that file has been missing from that office, Solicitor General’s Office. Q: Mr Kumura, the actual writ was filed by Peter Pena and Associates on 2 June 2003, and acting onyour instructions, Mr Bokomi filed a notice of intention to defend sometime on 2 July 2003. Was that within the time you filed that notice? A: The dates I am not too sure but— Q: If I may hand over, there is a writ and a defence. A: Yes. 10 THE CHAIRMAN: Was there a defence action filed or just a notice of intention to defend? MR MIROU: A notice of intention together with defence. [2.15 pm] A: Yes, the signature is mine. So yes, I confirm these documents were filed by— Q: Commissioner. if the writ of summons was filed on the— 20

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  • A: The writ of summons was filed on 2 June 2003. Q: And the defence? A: The notice of intention to defend on 2 July 2003 and the defence on 7 July 2003. Q: Let me show you a letter. If the witness can be shown this letter, that is dated 3 July 2003. Have you seen that letter before? 30 A: Yes, I have sighted that letter, I have seen a copy within the office. Q: That letter was written by Mr Francis Damem to the then Secretary, Mr Thaddeus Kambanei? A: That is correct. Q; As a result of that letter a reply was made by Mr Wahune stating that, that letter constituted a deed of settlement? 40 A: Is that so? [2.20 pm] Q: That is the reply from Mr Wahune. A: This letter dated 8 July 2003 from Kareana Real Estate to Francis Damem, I have never sighted thatletter, this is the first time. Q: As a result of that letter the actual claim was eventually processed through the Finance Department and actually paid. 10 A: You mean that there was no deed of release? Q: That is basically that — A: Or advice? Q: Would that be a normal practice? A: No, this is very unusual. 20 Q: That is an unusual practice for a letter to be written as a deed of release? A: Most unusual I agree. Q: At anytime during that period, did you follow up on the actual claim or were you advised by the Attorney General that he had written a letter in that regard? A: No, all that I became aware of was that something came up during the – I do not know whenprecisely but I heard that it was settled, that the claim was settled and I did not know what actually transpired so I asked to see the file from Jimmy Bokomi and Bokomi said, no, he cannot produce thefile because the file has gone missing. So, I asked Bokomi to confirm. He did a memo to meconfirming that the file has gone missing and I asked him what he has does with it. He confirmedthat he filed a defence and that the file has gone missing and he does not know what has happenedto the matter. That is about it, until Isighted correspondence relating to the settlement in terms of the letter from Damem to Kambanei. I heard later that it was settled. Q: Pretty serious, in fact it involves about an amount of K4 million whereas in fact K2 million wasactually paid out, another K2 million was stopped as a result of the Ombudsman inquiry. [2.30 pm] If I may ask for the documents and for them to be tendered in respect of —10 THE CHAIRMAN: Very well. It would be Mr J Kumura 1, tendered and exhibited. MR MIROU: John Kumura 1, yes. All those documents will constitute— [EXHIBIT TENDERED – JOHN KUMURA 1 – BUNDLE OF DOCUMENTS] MR MIROU: Mr Kumura, was there anything else that you were aware of 20 with regard to thisparticular claim that you may provide to the Commission? A: There were copies of certain documents that I had dropped off yesterday that — Q: That is in relation to Mr Manei’s — A: Yes, the data.30 Q: Coming back to Mr Manei during that time did he consult you? A: All I recall was he came and saw me with a detailed copy of the contract, I mean what you call asubmission. THE CHAIRMAN: A submission? A: A submission for settlement and I refused to deal with him and that is about it, he went away andthen—40 Q: Mr Manei’s a lawyer, is he? A: He is a lawyer. I do not know whether he is practising or not but— Q: You will also note that in Mr Manei’s submission was referred to in the $ttorney General’s letter.If you look at the $ttorney General’s letter he makes reference to that document, that submission made by Mr Manei. The letter by the Attorney General makes reference to that particular document.10 A: Yes.

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  • THE CHAIRMAN: I am sorry, I have not seen the documents but the date did not seem right but wasthe defence filed out of time? MR MIROU: Mr Kumura if you look at the writ of summons and the defence, was it filed within time,on the dates, on the actual notice of intention to defend and the defence? A: The writ of summons was filed on 2 June 2003. The notice to defend 20 was filed on 2 July 2003and the defence was filed on 7 July 2003. Q: That would still be— THE CHAIRMAN: Well within time. A: Well within time. MR MIROU: Well within time, yes, the 90 days period? 30 A: The defence was specifically – that claim was statute barred arising out of a claim fromBougainville that occurred back in 1989. Q: If you look at the letter from the Attorney General, he specifically said that the notice and thedefence was filed out of time. X2.25 pmZ $: Yes, the letter from the $ttorney General says that State’s defence may have been filed out of time which is not true.40 Q: If those bundle of documents referred to in Mr Manei’s submission be handed up. &hief Commissioner, that is the document that I obtained a copy from Mr Kumura and that is thesubmission by Mr Manei in which the Attorney General relies on when he wrote that letter to theSecretary for Finance to clear the claim for payment. If that document can be also included in therecords? THE CHAIRMAN: Yes, all right. MR MIROU: Yes, if those documents, the submissions can also be marked? 10 THE CHAIRMAN: Is that part and parcel of the documents supplied? MR MIROU: Yes. THE CHAIRMAN: Just the one bundle? MR MIROU: That is the bundle— THE CHAIRMAN: One bundle, very well. It should remain in the same 20 bundle. All right, thank you, anything else? MR MIROU: Anything else that you wish to raise with regard to this claim? A: I think that is about it, yes. THE CHAIRMAN: All right, thank you then. Thank you for coming. MR MIROU: We have Mr Damem and if I may call Mr — 30 THE CHAIRMAN: Yes, thank you Mr Kumura. THE WITNESS WITHDREW

    40 MR FRANCIS DAMEM, Recalled: XN: MR MIROU THE CHAIRMAN: Yes, Mr Damem, thank you for coming. MR MIROU: Mr Damem— THE CHAIRMAN: Are you familiar with this matter? Is this in respect of 10 the same matter or? MR MIROU: This is in respect to the Kareana matter. THE CHAIRMAN: Are you familiar with this matter of Kareana Estates settlement? A: Yes, Chief Commissioner, sorry for being late but — Q: No, you have not been late. 20 A: I turned up this morning in the mistaken belief that I was required in the morning and brieflyindicated to Counsel that I will maintain my position as I communicated to the Commission in Aprillast year, that I do not wish to say anything because this particular case implicated me unfairly andpolitical leaders referred me to all relevant authorities, law enforcing agencies including theOmbudsman Commission without asking for an explanation so I decided from day one when Ifronted up at the Ombudsman Commission with my Counsel Mr Greg Sheppard to maintain silenceand to institute appropriate proceedings at the end of 30 the day when I have my day in court. [2.30 pm] This case really ruined my future in the Public Service and my political ambitions also inthe last elections. Chief Commissioner, in the first letter to the Commission, I basically raised

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  • theissue of right to silence under the Constitution and because the matter was pending in the NationalCourt and the fact that I in my interview with the Police after the Ombudsman Commission interview,I also maintained silence there during the record of interview and that fact I communicated to theCommission through my letter I think on 12 April last year. Although I 40tried to retrieve the copies – that is one of the reasons as I am late – from my file. I indicated then that whilst the matter was pending I still maintain silence under the Constitution, right to silence andthat the Commission of Inquiry was a quasi judicial tribunal and as such was inferior to a court of lawbefore which I was facing those criminal charges. MR MIROU: Mr Damem— A: Sorry, if I could just finish off and then Counsel you can ask me. And 10 the Commission replied, I just do not have the letter, sorry. The Commission replied to me – replied to the letter of the 12th $pril and indicated that it was merely operating within the Terms of it’s Reference set by the Prime Minister under the Commission of Inquiry Act. On that issue I responded in my second letter.I think it was dated either the 18th or something. I believe the Commission should have both letters. The &ommission’s record should have both letters. In the second