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In the Matter of The Association by Waghi Mek Plantations Ltd [2001] PGNC 152; N2051 (5 February 2001)

N2051

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS No. 271 of 1999

APPLICATION FOR JUDICIAL REVIEW PURSUANT TO SECTION 155(3) OF THE CONSTITUTION

AND: IN THE MATTER OF ORDER 16 OF THE NATIONAL COURT RULES

AND: IN THE MATTER OF THE ASSOCIATION INCORPORATION ACT CHAPTER NO. 142

AND: IN THE MATTER OF THE ASSOCIATION BY WAGHI MEK PLANTATIONS LTD a company duly incorporated under the Companies Act 1997

Mt. Hagen: Hinchliffe J
2001: February, 5.

JUDICIAL REVIEW of a decision of the Registrar of Companies ¾ Associations Incorporation Act Ch. No. 142 ¾ Whether or not the correct procedure has been followed by the Objector to the proposed Incorporation ¾ Sections 4 and 5 of the Act.

Counsel:

K. Peri for the applicant.

5th February, 2001

Hinchliffe J: The applicant is seeking a Judicial Review of a decision of the Registrar of Companies whereby the Registrar refused an application objecting to the incorporation of an Association named Jiwaka Waal Daam Association. The objection was made pursuant to Section 4 (1)(c) of the Associations Incorporation Act Ch. No. 142 which provides as follows:

"4. Objection to incorporation.

(i) A person may by written notice lodged with the Registrar, within one month after the publication of a notice under Section 2, object to the incorporation of the association to which that last mentioned notice relates on any of the following grounds:-

(c) that the association was formed or carried on, or is proposed to be incorporated, for an immoral or illegal purpose or a purpose contrary to public policy."

The written notice of objection was in the form of a letter dated the 30th March, 1999, from, "Koeya J. Peri, a duly authorized agent for Wahgi Mek Plantations Ltd." to the Registrar of Companies. The said letter is annexure "B" to the affidavit of Koeya J. Peri dated the 31st May, 1999 and filed on the 4th June, 1999 and it reads as follows:

Wahgi Mek Plantations Ltd.

PO Box 29

BANZ 283

Western Highlands Province

30th March, 1999

VIA FACSIMILE: 321 3049

The Registrar of Companies

PO Box 2181

PORT MORESBY 121

National Capital District

Dear Sir

OBJECTION TO INCORPORATION OF JIWAKA WAAL DAAM ASSOCIATION

We advise we act on behalf of Waghi Mek Plantations Ltd. Our client operates about 13 different coffee plantations in the Waghi Valley, the shareholders of which are the North and South Waghi Local Level Government Councils. The coffee plantations are situated with the Jiwaka geographical area.

After the 1997 General Elections, bandits broke into the Wagamil Supply House at Kudjip and allegedly stole K79,710.25 worth of chemicals and agricultural supplies. Thereafter fences were destroyed, various assaults were occasioned on company employees. Further threats have been made on lives of senior company managers in PNG and Australia.

Paul Ansphill of PO Box 640, Mount Hagen, a person authorized by the Committee of the association known as "Jiwaka Daam Association" is the 15th Defendant in WS No. 201 of 1999. A copy of the Writ of Summons is enclosed herewith. The National Court in Goroka on 5th March 1999, restrained the various Defendants including the Applicant from threatening, intimidating, assaulting the families of Waghi Mek Plantation workers. A copy of the junction is also enclosed herewith.

Object two (2) of the proposed association would entitle the Association (if incorporated) to pursue an illegal purpose, to threaten, intimidate, assault and take over the management of Waghi Mek Plantations Ltd. from the current management pursuant to Section 4 (1)(c) of the Association Incorporation Act Chapter No. 142.

Ironically, the applicant intends to incorporate this association at about the same time Waghi Mek Plantations Ltd. is faced with a serious problem led by the applicant in destabilizing the smooth running of its operations. Also enclosed herewith is copy of newspaper cutting quoting the applicant as acting for other Defendants.

For the foregoing reasons, we hereby object to the incorporation of Jiwaka Waal Daam Association.

Yours faithfully

Waghi Mek Plantations

Koeya J. Peri, a duly

Authorized agent for

Waghi Mek Plantations Ltd.

Waghi Mek Plantations Ltd. was advised in a letter from the Registrar of Companies, dated the 22nd April, 1999, that its objections were not upheld. The said letter is annexure "C" to the said affidavit of Koeya J Peri and it reads as follows:

INVESTMENT PROMOTION AUTHORITY

Office of the Registrar of Companies

P O Box 1281 Telephone (675) 3213900

Port Moresby Facsimile (675) 3213049

Papua New Guinea

Our Reg: 5-4/LK

Your Reg:

22 April 1999

Dear Sir,

JIWAKA WAAL DAAM ASSOCIATION

We refer to your letter of 30 March 1999 objecting to the incorporation of the above association and advise that your grounds of objection have not been upheld.

The objects and purposes of the association do not show that the association is proposed to be incorporated for an immoral or an illegal purpose. The matters you raised in your letter appear to be private matters concerning the company, Waghi Mek Plantations Ltd. To solve these matters, we suggest you seek legal action.

Furthermore, the association has prescribed qualifications for incorporation and we will incorporate the association if the applicant wishes to proceed with the incorporation of the association.

Yours faithfully

W L. Marum
Registrar of Companies

It can been seen quite clearly from the two said letters that Mr. Peri and the Registrar of Companies are in disagreement as to the interpretation of the said Section 4 (1)(c) of the said Act. I should say at this stage that I am inclined to agree with the interpretation given by the Registrar of Companies. Be that as it may I am also of the view that the applicant company has not followed the correct procedure as set out in the said Act. Section 5 of the said Act provides as follows:

5. Appeal from decision of Registrar.
   

(1) Subject to this section, if the objector or the applicant for incorporation is dissatisfied with the decision of the Registrar under Section 4, he may appeal against that decision to a Magistrate Grade IV. or Magistrate Grade III.

(2) Where an appeal under this section is brought¾

(a) by the objector, the applicant for incorporation shall be joined as a party to the appeal; or

(b) by the applicant, the objectors shall be joined as a party to the appeal.

(3) An appeal under this section ¾

(a) shall be made within 28 days after the receipt by the appellant of notice of the decision in respect of which the appeal is brought or such extended time as a Magistrate Grade IV. or Magistrate Grade III. allows; and

(b) shall be instituted by written notice of appeal, setting out the grounds of the appeal and served on, or sent by registered post to¾

(i) the Clerk of the District Court for the area in which the appeal is to be heard; and

(ii) the Registrar; and

(iii) any person who is required by Subsection (2) to be joined as a party to the appeal.

(4) Subject to the preceding provisions of this section, an appeal under this section shall be instituted, heard and determined as prescribed.

(5) On the determination of an appeal under this section, the Magistrate by whom the appeal is heard shall, by order, determine whether or not the objection should be upheld.

(6) The determination of a Magistrate on the hearing of an appeal under this section is final.

(7) An appeal does not lie under this section against a decision of the Registrar as to whether an association should or should not be incorporated under a particular name or under a name of a particular kind.

It would seem to me that the applicant company should have appealed the decision of the Registrar of Companies to a Magistrate and then followed the procedure as set out in the said Section 5. Clearly it did not do so, it went straight to the National Court before exhausting the said avenue of appeal. To my mind, by failing to comply with the said Section 5 it has made a fundamental error which cannot be corrected.

Subsection 7 of the said Section 5 provides for the only situation where an appeal does not lie under the said Section 5. It provides as follows:

(7) An appeal does not lie under this section against a decision of the Registrar as to whether an association should or should not be incorporated under a particular name or under a name of a particular kind.

I am quite satisfied that the name of the association or the "name of a particular kind" was not raised in the letter of objection that being the said letter of Koeya J Peri addressed to the Registrar of Companies dated the 30th March, 1999.

It follows therefore that that the applicant company has been unsuccessful in this application and that the decision of the Registrar of Companies in refusing to uphold the said objection of the applicant company is confirmed and I so Order.

I further Order that the Order of this Court on the 10th June, 1999, restraining the Registrar of Companies from incorporating Jiwaka Waal Daam Association is now lifted.

Orders accordingly.
________________________________________________________________________
Lawyer for the applicant, Warner Shand.