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Somare v Aipa [2019] PGNC 376; N8140 (22 October 2019)

N8140


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


O.S NO. 469 OF 2018


BETWEEN
GRAND CHIEF SIR MICHAEL SOMARE, MICHAEL SAULEP, HENRY BONGARI as the DIRECTORS OF SEPIK RIVER DEVELOPMENT CORPORATION REMOVED ON THE 09TH MAY 2018 AND 29TH JUNE 2018
Plaintiffs


AND
SEBASTINE AIPA as CHAIRMAN APPOINTED ON 09TH MAY 2018 AND THE BOARD OF DIRECTORS OF SEPIK RIVER DEVELOPMENT CORPORTION LIMITED

First Defendants


AND
CLEMENT ADAMA, DAVID YAKU AND JOHNSTON YAGISO as DIRECTORS APPOINTED ON 02NDJUNE 2018

Second Defendants


AND
SEPIK RIVER DEVELOPMENT CORPORATION LIMITED

Third Defendants
AND
HARRIET KOKIVA, in her capacity as ACTING REGISTRAR OF COMPANIES

Fourth Defendants
AND
CLEMENT ADAMA, DAVID YAKU AND JOHNSTON YAGISO as DIRECTORS APPOINTED ON 02ND JUNE 2018

First Defendants


Wewak: Gora AJ
2019: 22nd October


PRACTICE AND PROCEDURE- Application to dismiss proceeding – Proceeding filed without consent and authority of Leading Plaintiff – Leading Plaintiff not aware of the proceeding – Leading Plaintiff can withdraw from proceedings – other remaining plaintiffs entitled to proceed on.


PRACTICE AND PROCEDURE–Matter initially filed as (JR) matter – Initials (JR) crossed out – Pleadings not of Judicial Review nature – Matter an ordinary Originating Summons. Whether proper practice – Leave of Court is required to amend heading of an origination process.


Cases Cited:


Nil


Counsel:


S. Babanem,for the Plaintiffs

M. Koimo,for the Defendants


JUDGMENT ON NOTICE OF MOTION

22nd October , 2019

  1. GORA AJ: INTRODUCTION: This is an application by way of Notice of Motion by the First, Second and Third defendants. They seek the following orders:
  2. In a nut shell the defendants are seeking orders for the entire proceeding to be dismissed or alternatively for the Court Orders of 13th July 2018 to be set aside.

ISSUES

  1. There are three main issues for consideration:
    1. Whether the mode of proceeding commenced under O.S 469 of 2018 is correct.
    2. Whether the Plaintiffs have standing or authority to commence these proceedings under O.S 469 of 2018.
    1. Whether the Plaintiffs failed to comply with filing of the mandatory documents of any Judicial Review at the time proceeding O.S 469 of 2018 was filed.
    1. Whether the Order of the Court dated 13th July 2018 be set aside.
    2. Whether Plaintiffs should pay the Defendants cost.

NATIONAL COURT RULES

  1. There are preliminary issues in respect of the citation of the National Court Rules by the defense counsel in his submission. First, his citation of Order 16, Rule 13 (13) (2) (a) (b) (a) in respect of Rules pertaining to Summary disposal is wrong. There is no such provision in the National Court Rules. The correct citation is Order 16, Rule 13 (2) (a) (b) (i). These provisions read.

“(2) (a) An application for Judicial Review may be determined summarily for failing to comply with directions or orders issued under the Order 16 of the National Court Rules or under these Rules or on any other competency grounds. (b) The Court may summarily determine a matter: (i) On application by a party.”


  1. Second, his citation of Order 12, Rule 8 (a) (b) pertaining to setting aside or varying an order is wrong. There is no such provision in the National Court Rules. The correct citation is Order 12, Rule 8 (3) (a) (b). These provisions read:

“(3) The Court may, on terms, set aside or vary an order – (a) Where the order has been made in the absence of a party, whether or not the absent party is in default of givinga Notice of Intentionto defend or otherwise in default, and whether or not the absent party had Notice of Motion for the Order; or (b) Where Notice of Motion for the setting aside or variation is filed before entry of the order.”


  1. Defects in citation of the correct Rules of the National Court Rules or the Laws in general for that matter, by counsels in their submissions not only misleads the Court but also waste Courts time in researching the correct provision of the relevant Rules or Laws. This should never happen. It is the duty of the counsels to submit to the Court correct citations of Laws and Rules of the Court in support of their submissions. Failure to submit correct citation of Laws and or Rules by Counsels only makes their submissions meaningless to the Court, as such submissions would lack substance and clarity. Court is therefore entitled to refuse and or reject submissions which have serious flaws where wrong provisions of the Laws and Rules of the Court are being cited. I will decide on this issue at the conclusion of my decision on this application.

ANALYSIS OF ISSUES


  1. For now, let me deliberate on the issues pertinent to the application.
    1. Whether the mode of proceedings commenced is correct.
      1. Court records show that the proceedings were initially commenced under O.S (JR) 469 of 2018 as it appears in the Originating Summons, meaning that it was commenced as a Judicial Review matter. There are no records to show whether leave for Judicial Review was first obtained by the Plaintiffs pursuant to Order 16, Rule 3, before filing the substantive application for Judicial Review.
      2. What is on record, however, is that the mode of proceedings was amended in Court, presumably on oral application by the Plaintiffs on the 13th July 2018. Initial “JR” in brackets, as they appeared in the Originating Summons were crossed out by hand leaving only the label/heading O.S 468 of 2018. All documents filed there after by the Plaintiffs are under that label/heading.
      3. I have not sighted records of why there was a change from O.S (JR) of 2018 to just O.S 468 of 2018. The only possible explanations are:
        1. First, leave for Judicial Review was not sought first by the Plaintiffs prior to filing the substantive application for Judicial Review.
        2. Second the remedies sought in the proceedings are not of Judicial Review nature such as a mandamus, prohibition or certiorari. They are in the nature of declaratory orders, and therefore need not necessarily be commenced by way of a Judicial Review. In other words, the pleadings in this proceeding are not of Judicial Review nature but of an ordinary Originating Summons.
        3. Third, the proceedings are not against acts of inferior Courts, tribunals and public bodies but of private persons and entities for which a Judicial Review proceeding may not be appropriate.
      4. I am therefore satisfied that the amendment made to the mode of proceedings from O.S (JR) 468 of 2018 to O.S 468 of 2018 was proper to justify the nature of remedies sought in the proceedings. It is not a Judicial Review proceeding.
    2. Whether the Plaintiffs have standing or authority to commence these proceedings under O.S 469 of 2018.
      1. It is claimed that the Leading Plaintiff in this proceedings Grand Chief Sir Michael Somare never gave his consent and authority to file the proceeding in his name to Raurela Lawyers.
      2. I note from the Court file that there is an affidavit of Grand Chief Sir Michael Somare which is dated 19th September 2018. Content of this affidavit is as follows:

“(1) I was then the Chairman of the Plaintiff company from 12th December 1987 up to 02nd June 2018 where I was removed as the Chairman by the current Board of the SRDC and replaced by Mr. Sebastine Aipa of Kasmin village.


(2) I am very well acquainted with Mr. Sebastine from my long association with him. At the time of my removal as the Chairman on the 02nd of June 2018, I was informed of the meeting, but I was in Port Moresby and I did not attend.


(3) I am no longer interested in the affairs of the Plaintiff company let alone be the Chairman.


(4) I was later informed by Mr. Sebastine Aipa that he is now the new Chairman and I have no issue about his appointment at all. As I have stated earlier, I no longer have any interest about the affairs of SRDC.


(5) This is the first time I am made aware that such a proceeding was filed in my name. My name was illegally used to file this proceeding.


(6) I have not filed an undertaking in Court because of the very reason that I was not aware of such a proceeding.


(7) I have not given any instruction either in writing or verbal to Raurela Lawyers to defend me in this proceeding and I cannot be responsible for all legal costs associated with this matter as well.


(8) I am very concerned that any further Court determination of this matter will unnecessarily involve me.


(9) This proceeding therefore should be dismissed for having no authority from me.


(10) this is my position in relation to this proceeding.”


  1. It is clear from the affidavit of Grand Chief Sir Michael Somare that he was named as a Plaintiff in this proceeding without his authority or consent and that he does not wish to be involved the proceeding.
  2. The question is should the proceeding be dismissed on grounds that it was filed without the consent of the Grand Chief Sir Michael Somare.
  3. Grand Chief Sir Michael Somare appears to be the Leading Plaintiff but there are two other Plaintiffs also named in the proceeding. They are MICHAEL SAULEP and HENRY BONGARI. If Grand Chief Sir Michael Somare has not given his authority to be named as Leading Plaintiff in this proceeding, and has shown no interest in the case, then he must file his Notice of Withdrawal from the proceeding. Being named as Leading Plaintiff without his consent and authority is not in itself a valid ground for seeking summary dismissal of the proceeding when there are other Plaintiffs also named in the proceeding. The other two named Plaintiffs are entitled to proceed on with the matter.
  4. I therefore hold the view that; where there are more than one Plaintiff in a proceeding and the Leading or principle Plaintiff decides to withdraw from the proceeding, the matter cannot be dismissed summarily because the other named Plaintiffs are entitled to have their day in Court, unless the strength of the matter largely depends on the evidence of the Leading Plaintiff who intends to withdraw from the proceeding. I therefore see no reason to dismiss this proceeding.
  5. Whether the Plaintiffs comply with filing of mandatory documents for any Judicial Review at the time proceeding O.S 469 of 2018 was filed.
    1. This issue relates to compliance with filing of mandatory documents under the National Court Rules in respect of Judicial Review proceedings. The issue however, is on longer necessary to consider because I have already determined earlier that this is not a Judicial Review matter but an ordinary Originating Summons. I therefore dismiss this argument.
  1. Whether the order of the Court dated 13th July 2018 be set aside.
    1. The arguments advanced by the Plaintiff’s counsel in this motion are based on the premise that this proceeding is a Judicial Review proceeding, but the Court has found otherwise. I therefore see no reason why the orders of the Court dated 13th July 2018 should be set aside.
    2. The only issue I can raise in respect of the Court Orders of 13th July 2018 is that the orders may no longer be applicable to Grand Chief Sir Michael Somare being the Leading Plaintiff as he does not wish to be a plaintiff in this matter. But this of course is subject to whether he files a Notice of Withdrawal from the proceeding and to seek variation to the orders of 13th July 2018 to exclude him.

FINDINGS

  1. In the final analysis I find that:
    1. The motion filed by theDefendants is grossly defective for want of correct citation of the Rules of the National Court where no leave was sought for amendments to be made.
    2. This proceeding was initially filed as O.S (JR) No. 469 of 2018, a Judicial Review proceeding. However, this was later amended on the 13th of July 2018, of course with leave of Court, to O.S No. 469 of 2018, by deleting (JR) in brackets.
    1. The matter now before the Court is not a Judicial Review matter but an ordinary Originating Summons matter because the pleadings are not of Judicial Review nature.
    1. The Leading Plaintiff Grand Chief Sir Michael Somare is not aware of this proceeding. He was named as Leading Plaintiff without his consent and authority.

ORDERS

  1. Application to dismiss proceeding O.S No. 469 of 2018 summarily is refused.
  2. Orders of the Court dated 13th July 2018 remains unless proper application is made to have them set aside or varied.
  3. Leading Plaintiff Grand Chief Sir Michael Somare is at liberty to file Notice of Withdrawal from the proceeding.
  4. Other two remaining Plaintiffs namely Michael Saulep and Henry Bongari are entitled to proceed on with the matter.
  5. Parties to meet their own costs.
  6. Substantive matter adjourned to the next civil call-over for mention.

ORDERED ACCORDINGLY
__________________________________________________________________Raurela Lawyers: Lawyers for the Plaintiffs
Kipes Lawyers: Lawyers for the First to Fourth Defendants


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