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Girire v Investment Promotion Authority [2020] PGNC 190; N8412 (22 May 2020)

N8412

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 503 OF 2019

BETWEEN:
PETER TERRY GIRIRE
Plaintiff

AND
INVESTMENT PROMOTION AUTHORITY by its officers ACTING REGISTRAR OF COMPANIES HARRIET KOKIVA, & DEPUTY REGISTRAR OF COMPANIES MALIS MININGI
First Defendant

And
KALIP SALO, SANTEE MARGIS, JONATHAN SALO, LUKE FREEMAN, GILIS TOM, WILLIAM TAMARU, LINDSAY MANOAH, KURU PERESI, ISMAEL KAEL & NATHANIEL BELO
Second Defendant

And
MUSSAU TIMBER DEVELOPMENT LIMITED
Third Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2020: 19^th May

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating summons – Leave application – Standing – delay – Arguable case – Internal remedies exhausted – application for leave for Judicial Review granted – cost follow event.

PRACTISE & PROCEEDURE – Judicial Review & appeals – Companies Act 2014 section 395A (1) – Duties of Registrar – discretion to act on Material lodged – Whether properly exercised – Arguable case – application for leave for Judicial Review granted – cost follow event.

Cases cited:

Mali v State [2002] PNGLR 15

Avia Aihi v. The State (No.1) [1981] PNGLR 81
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Somare, Re [1981] PNGLR 265

Counsel:

H. B Wally, for the Applicant

M. Tukuliya, for the Respondents

RULING

22^nd May, 2020

1. MIVIRI, J: This is the Ruling of the Court on an application by the plaintiff seeking leave under Order 16 Rule 3 (1)(2)(3)(4)(5) of the National Court Rules and the Constitution section 155(4) to apply for Judicial review. State counsel defending has placed no position for or against the application. In effect leaving the matter to the discretion of the court.
   
2. From the material before me, firstly the amended Originating Summons dated the 25^th July 2019 filed the 26^th July 2019, amended Statement pursuant to Order 16 Rule 16 (3) (2) (a) of the National Court Rules, amended undertaking as to damages dated the same, amended Notice for Application for Judicial Review, and the affidavit of the Applicant the following have been established prima facie.
   
3. The plaintiff is aggrieved by the decision of the first defendant of the 30^th May 2019 to allow the second defendant to lodge documents and Investment Promotion Authority forms to change the directors and shareholders of the third defendant when the changes were unauthorized and illegal effectively altering and removing the original directors and shareholders. As a result of this action the plaintiff was removed as chairman of the third defendant. That the first defendant is a public official of a public office who has not discharged his discretion justly and reasonably in compliance of a process of law hence the position of the plaintiff in the third defendant has been affected. These are the material facts necessary at this stage when leave is sought.
   
4. He relies and invokes Section 395A Companies Act amendment 2014

RECTIFICATION OR CORRECTION OF PAPUA NEW GUINEA REGISTER AND OVERSEAS REGISTER.

(1) The Registrar may –

(a) on the application of any person, rectify the register if the Registrar is satisfied that any information has been wrongly entered in or omitted from the register; or

(b) if it appears to the Registrar that any particulars have been incorrectly entered in the register due to a clerical error by the Registrar, correct those particulars.

(2) Before the Registrar rectifies the register under Subsection (1)(a), the Registrar shall -

(a) give written notice to the company or overseas company that an application has been made to rectify the register in relation to that company or overseas company (including details of that application); and

(b) give public notice setting out –

(i) the name of the applicant; and

(ii) the name of the company or overseas company; and

(iii) the reasons for and details of the changes sought to be made to the register or the overseas register; and

(iv) the date by which a written objection to the proposed rectification must be delivered to the Registrar, being a date not less than 20 working days after the date of the notice.

(3) Any person may deliver to the Registrar, not later than the date specified in accordance with Subsection (2)(b)(iv), a written objection to a proposed rectification of the register or the overseas register, and the Registrar shall give a copy of the objection to the applicant.

(4) The Registrar shall not rectify the register or the overseas register if the Registrar receives a written objection to the proposed rectification by the date specified unless the Registrar is satisfied that the objection has been withdrawn.

5. First the Applicant has to demonstrate that he has standing or locus standi. In reliance he has sought by Supplementary affidavit dated the 14^th August 2019 that he has been the original Director chairman and shareholder of the third defendant and closed its operations in 1996 and came to Port Moresby since 2002. That he did so because the company was stolen as there was never convened an annual general meeting or compliance with the Companies Act 1997 for its takeover. That he never gave his consent as an original director and shareholder for the takeover by the second defendants and their associates. He alleges fraud in the takeover. That this was attained through improper and illegal filing of documents in the Investment Promotion Authority registry. And these he asserts were not fully considered by the first defendant in the exercise of his discretion after he had published in the National Gazette No. G106 dated 15^th February 2019 despite the cooperation he displayed to serve material to the first defendant to rectify the records in accordance with the publication made. That he states that the records were tampered with by the Deputy Registrar the first defendant to oust him as an original director and chairman. And to get the second defendant and associates in. He further contends that the second defendant through their lawyer responded to the gazette 4^th July 2019 outside the 20 working days because they did so after lapse of 92 days from the 15^th February 2019. Arguably the records should not have been changed from the initial as there was no objection and the objection that came in was late.
   
6. In my view these facts disclose that he has sufficient interest in the matter. He is directly affected by the decision of the first defendant who has exercised discretion as a public official in a public office in the admittance of forms leading to the eventual composition of the third defendant. Read together with Section 395A (supra) the process set out there has not been followed hence an arguable ground made out in favour of the plaintiff. This is more so because the second defendants are not named in their capacity as to what they are as a group. Their naming as to what they comprise or nominally represent is not clear and in the form they are in are objectionable. Plainly second defendants have neither capacity nor the Standing to sue. They are not a representative of a class action because, "In representative actions, the legal representatives are required by law to have the names of the plaintiffs or defendants (my emphasis) included in a schedule (to the Writs) or for their written consents to be filed and these consents to be by way of an Authority to Act Form. [Order 5 Rules 3 & 8 of the National Court Rules], Mali v State [2002] PNGLR 15 (3 April 2002). In this regard there is no consent or authority evidencing as to what the second defendants are. Or even a meeting resolution to that effect of presumably the third defendant. This is ground added to in favour of the plaintiff in the contention that he makes against.
   
7. Further by Section 155 (4) of the Constitution going by the history that he has set out in the affidavit supporting it would be denial of justice if strict compliance is adhered to in time taken to bring this matter to the courts as was demonstrated in Avia Aihi v. The State (No.1) [1981] PNGLR 81. Rules are a means to an end and should not ultimately deny justice. Justice should not be substituted for rules. He has deposed that he came here after closing up the company back in 1996 and in 2002. The formal amended originating summons is dated the 25^th July 2019 filing is 26^th July 2019. The decision effecting the subject of the proceedings is of the 9^th July 2019. He is 12 days after which he files this action. He has not unduly delayed. He satisfies on the balance in his favour on this ground.
   
8. His notice of the matter to the first defendant has not taken any favour. It means he has no other alternative avenue to take internally and resolve the matter. Hence, he has come to court after exhausting internal process there, particulars he has set out in his affidavit with respect to approaches on the matter with the first defendant to no avail. This qualifies as a ground made out in his favour: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
   
9. Administrative process being not in a vacuum but based upon law: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008). It would open the flood gates to interpret that any person whether in law or otherwise is open to the process of judicial review which is started by leave. By itself leave is discretionary and there ought to be proper basis established prima facie to invoke not otherwise. And this applies to standing or locus standi: Somare, Re [1981] PNGLR 265 (3 August 1981). Applicant has demonstrated to the required balance that he has standing in law given his facts. Which is not the case in my view of the second defendants.
   
10. In the total I am satisfied on the balance of probabilities on the material that he has presented that he be accorded leave to apply for Judicial Review. Accordingly, his motion for leave is granted and costs follow the event.

Orders Accordingly.

__________________________________________________________________

H.Best Wally Lawyers: Lawyer for the Plaintiff /Applicant

Office of the Solicitor General: Lawyer for the Defendant