Nett Holding Ltd v Warea [2021] PGDC 251; DC9055 (13 December 2021)

DC9055

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

DC. NO. 62 OF 2021

NETT HOLDING LIMITED
Complainant

V

VINCENT WAREA IN HIS OWN CAPACITY
AND ALL THE ILLEGAL OCCUPANTS OF
PORTION 3249, GRANVILLE, PORT MORESBY
Defendants

Port Moresby: Clivson Philip, Magistrate

2021: 27^th September & 13^th December

IN THE MATTER OF AN APPLICATION FOR DISMISSAL OF 10 SUMMARY EJECTMENT PROCEEDINGS PURSUANT TO RULE 10 OF PROFESSIONAL CONDUCT RULES, 1989 AND SECTION 22 OF DISTRICT COURTS ACT, CH. NO. 40

REASONS FOR DECISION

Lawyers’ professional conduct - conflict of interest contrary to Rule 10 (3) & (4) of Professional Conduct Rules, 1989 - sole proprietor of a law firm also holding board directorship in another company being legally represented not disclosing his business interests contrary to sections 112 (a) & (b), 118 & 164 (1) (b) of the Companies Act, 1997 - contrary to primary legal obligations of a director.

Duplication of originating processes - subsequent statement of claim filed bearing the scanned signature of complainant’s managing director who is overseas - subsequent amended originating processes filed without specific leave of the court - contrary to section 138 of the District Courts Act.

Courts and Judicial Officers - need to conduct due inquiry to be satisfied that a matter is properly before the court - duty to protect the court against abuse of its processes by frivolous claims.

Held:

1. It is proven and clear that Mr. McRonald Nale had a conflict of interest in his capacity as a co-director of Nett Holding Ltd and inherently as the sole proprietor of Jema Lawyers contrary to Rule 10 (3) & (4) of Professional Conduct Rules, 1989;
   
2. The court had conducted its due inquiry to satisfy itself that the proceedings were not properly instituted by the complainant due to duplicity of originating processes as an abuse of the process.
   
3. The complainant’s directors are required to conduct a board meeting in order to comply with sections 118, 112 (a) & (b) and 164 (1) (b) of Companies Act, 1997 to formally take out new proceedings.

Cases cited:

The ensuing cases were cited and followed by this ruling:

1. Peter Yama v. PNGBC [2008] PGSC 42; SC922.
   
2. Macaura v. Northern Assurance Co. Limited [1925] AC 619
   
3. T.T Angore Noa Hai Investment v. Buna [2019] PGNC 143; N7881 (24 May 2019).
   
4. Kopen Yanda and Others v Apostolic Church Properties Association of PNG Inc. (2006) N3042.
   

Counsels:

S Dewe, for the Respondent/Complainant.

B Francis, for the Applicant/Defendant.

13^th December, 2021

1. INTRODUCTION
   

1. On Friday 27^th September 2021 the Port Moresby District Court in court-room one at 1:30pm delivered following ex-tempore orders after conducting inter-parties hearing of lawyers for parties in relation to defendants’ notice of motion filed on Tuesday 21^st September 2021 to dismiss ten actions:
   
   1. “The various but related legal proceedings styled as Complaint Nos. 62, 63, 64, 65, 66, 67, 68, 69, 70 and 71 of 2021 are struck out in their entirety for being irregular, incompetent and an abuse of court process due to conflict of interest by proprietor of Nett Holding Limited, Mr. McRonald Nale contrary to Rule 10 (3) and (4) of the Professional Conduct Rules, 1989;”
      
   2. “The complainant is at liberty to file fresh proceedings with the engagement and service of another private lawyer or law firm other than Jema Lawyers; and”
      
   3. “No orders made on costs.”
      
2. The interlocutory orders dated the 27^th of September 2021 were intended to ensure that 2 previous court directions were complied with by parties so that all outstanding pleadings were progressed expeditiously to closure stage in preparation for settling on a trial date following the hearing of this three-pronged threshold motion pursued by the defendants premised on (1) a conflict of interest, (2) duplicity of amended proceedings and (3) use of a scanned signature on the amended complaints.
   

2. PLEADINGS IN THE NOTICE OF MOTION
   

3. The notice of motion had sought orders for an ultimate dismissal of all the ten proceedings as being irregular, incompetent and an abuse of court’s process.
4. However, the grounds relied upon in the notice of motion did not justify a dismissal of these cases as submitted by Mr. Simon Dewe, lawyer for the complainant but specifically intended to cure any residual defects being identified by the defendants upon the complainant’s due administration of complying with two clear court directions issued to amend the originating processes firstly granted with leave of court on Tuesday 10^th of August 2021 and secondly on Friday 20^th of August 2021.
   
5. The three primary grounds seeking orders for dismissal with costs of the entire 10 cases are enumerated in paragraph A (2) at page 1 of the defendants’ 4 pages written submission as follows:
   
   1. Conflict of interest contrary to Rule 10 (3) & (4) of the Professional Conduct Rules, 1989;
      
   2. Duplicity of proceedings (2x amended originating process documents); and
      
   3. Usage of scanned signature of Mr. Jeffrey Dean Kennedy.
      

100. THE TWO COURT DIRECTIONS ISSUED TO AMEND THE ORIGINATING PROCESSES
     

6. The defendants’ notice of motion was filed on Tuesday 21^st September 2021 to challenge regularity and legality in manner by which complainant had carried out and complied with those 2 interlocutory orders issued on Tuesday 10^th August 2021 then subsequently on Friday 20^th August 2021 to amend its originating processes under sections 22 and 138 of District Courts Act, Ch. No. 40 (DCA).
   
7. Because of a very nature of the cases which involves a large number of affected settlers described as defendants, the court had granted those 2 directions in order to guide both parties’ lawyers involved in those ten related cases to ensure a smooth administration of both interlocutory matters and closure of pleadings before trial date is to be settled by the parties for substantive issues to be prosecuted.
   
8. Those two directional orders of the court which were being complied with by the parties including certain matters arising with the defendants are enumerated hereunder.
   
   1. The court’s first interlocutory directional order of Tuesday the 10^th August 2021 for the complainant to amend its originating processes are as follows:
      
      • (i) Pursuant to sections 22 and 138 of the DCA, the orders sought in the complainant’s notice of motion filed on 2^nd of July 2021 shall be granted in terms of amending then filing and serving sealed copies of the amended originating processes comprising both the complaint and summons to a person on complaint to the defendants’ lawyer within three clear days;
        
      • (ii) Counsel for the defendants shall accept service of sealed amended originating processes on behalf of all uncooperative defendants who opted in refusing to accept initial service;
        
      • (iii) The parties who missed initial service of originating processes shall apply to be joined;
      • (iv) The complainant’s lawyer shall serve sealed copies of the amended originating processes upon the defendants’ lawyer on behalf of those specific parties who have refused receipt of the initial service of the originating processes and accompanying pleadings; and
        
      • (v) Case shall be adjourned to Friday 20^th of August 2021 at 1:30pm for further directions.
        
   2. The court’s second interlocutory directional order of Friday the 20^th of August 2021 for the complainant to amend its originating processes for a second time are as follows:
      
      • (i) Pursuant to sections 22 and 138 of the DCA, the complainant shall be granted leave today as a final adjournment to further amend its originating processes and serve sealed copies upon the lawyer for the defendants;
        
      • (ii) The complainant’s lawyer shall further amend the originating processes specifically to account for and correct identified defects in the initial amended originating processes ordered on the 10^th of August 2021 including: (1) change red colored prints in the wordings back to a standard black color, (2) reinstate those deleted words that were taken out from original version of the originating processes and draw a line over them to show the Court ordered amendments on the subsequently amended originating processes, (3) reinstate the deleted texts by incorporating the deleted words and (4) number all pages of the further amended originating processes as these were originally un-numbered.
        
      • (iii) By Friday 27^th of August 2021 the complainant’s lawyer shall file and serve sealed copies of the amended originating processes upon the lawyer for the defendants;
        
      • (iv) By Friday 17^th of September 2021, the defendants’ lawyer shall file and serve sealed copies of the defendants’ defense and affidavits in reply upon the lawyer for the complainant;
        
      • (v) By Wednesday 22^nd of September 2021 the complainant’s lawyer shall file and serve sealed copy of its affidavits in response to the lawyer for the defendants; and
        
      • (vi) Case shall be adjourned to Friday 24^th of September 2021 at 1:30pm for mention.
        

4. DEFENDANTS’ ALLEGATIONS OF IRREGULARITY AND BREACHES IN PRACTICE
   

9. The defendants’ submission was based upon its own defendants’/applicants’ written submission comprising 5 pages (including cover sheet) dated Monday 27^th of September 2021 and had relied upon two affidavits filed on Tuesday 21^st of September 2021 respectively by (1) Mr. Steven Gideon who is one of the defendants and (2) Mr. Baundo Francis who is lawyer on record for the defendants.
   

5. EVIDENCE OF THE APPLICANT/DEFENDANTS TO SUPPORT THE NOTICE OF MOTION
   

10. The applicant/defendant relied upon the two affidavits both of which were filed at same day on the 21^st of September 2021 by (1) Mr. Steven Gideon and (2) Mr. Baundo Francis.
11. Firstly, the evidence adduced in the affidavit of Mr. Gideon at paragraph 3 shows that he is one of the defendants in this matter thus is very well aware and knowledgeable in fact that the complainant is being represented by Jema Lawyers in this matter concerning an eviction of settlers at 8 mile area.
    
12. In paragraph 4 of his affidavit Mr. Gideon testified to a fact that on 17^th of September 2021 while in his block at 8 mile his lawyer had produced then showed unto him personally an original version of an amended complaint filed by Jema Lawyers dated 1^st of September 2021.
    
13. Furthermore, his lawyer had pointed out to him a purported signature of Mr. Jeffrey Dean Kennedy which he described was scanned and pasted on which he had concluded that this signature is not an original one but an electronically scanned and inserted copy which can be deposed as Mr. Kennedy’s signature that is also applied upon all other amended statement of claim attached to the complaints.
    
14. Secondly, the evidence adduced in affidavit of lawyer for Applicant/Defendants, Mr. Baundo Francis filed on the 21^st of September 2021 contain 20 paragraphs with nine (9) exhibits described as follows:
    
    1. Annexure “BF1” comprising 2 pages firstly is copy of a Certificate of Registration of Business Name for Jema Lawyers No. 6-174830 issued by Acting Registrar of Companies on 14^th August 2021 and expires on 23^rd February 2022 and secondly a one page Business Name Extract of Jema Lawyers No. 6-174830 registered on 9^th of February 2015 and last renewed on 23^rd of February 2021 bearing its registered sole owner as Mr. McRonald Nale appointed on 12^th of January 2015.
       
    2. Annexure “BF2” has 5 pages comprising a one page copy of Certificate of Incorporation for Nett Holding Limited No. 1-11226 issued on 14^th of August 2021 by Acting Registrar of Companies (AROC) following its last name change on 2^nd September 1998 to current name of Nett Holding Limited. The latter 4 pages comprise a Company Extract of Nett Holding Ltd. No. 1-11226 incorporated on 30^th of April 1986. Page 2 of 4 of the extract shows a list of 4 directors of the complainant including Mr. Jeffrey Dean Kennedy who was appointed on 18^th of January 2010 and Mr. McRonald Nale who was appointed on 1^st November 2019. Pages 3 to 4 of the extract enumerate names of Nett Holding Limited’s 5 shareholders including Delta Corporation Limited.
       
    3. Annexure “BF3” comprises 4 pages. Firstly a one page copy of Certificate of Incorporation of Delta Corporation Limited No. 1-8746 with last name change made to its current name issued by the AROC on 14^th of August 2021. The latter 3 pages comprise a Company Extract of the Delta Corporation Limited No. 1-8746 which was incorporated on 12^th of August 1982. Page 2 of 3 of the extract shows a list of 3 directors including Mr. Jeffrey Dean Kennedy who was appointed on 1^st of December 2011 and Mr. McRonald Nale who was appointed on 1^st of December 2019. Last page 3 of 3 of the extract shows a list of two shareholders including Mr. Jeffrey Dean Kennedy.
       
    4. Annexure “BF4” comprises a 1 page copy of email exchanges between lawyer for complainant, Mr. Solomon Tongela and lawyer for defendants, Mr. Baundo Francis from dates of Tuesday 17^th of August 2021 to Wednesday 8^th of September 2021 wherein Mr. Baundo Francis had confirmed receipt by email from Mr. Solomon Tongela both unsealed and sealed versions of court documents then had raised three issues. Firstly in relation to not being satisfied with the amendments done. Secondly seeking confirmation and validation if Mr. Jeffrey Dean Kennedy is currently in the country and thirdly raising an issue in relation to ownership.
       
    5. Annexure “BF5” comprises a 1 page copy of an email exchange dated 8^th of September 2021 from lawyer for complainant, Mr. Simon Dewe to lawyer for defendants, Mr. Baundo Francis advising that the query raised earlier in relation to whereabouts of Mr. Jeffrey Dean Kennedy is irrelevant for purposes of the proceedings.
       
    6. Annexure “BF6” comprises a 1 page copy of an email exchange dated 20^th of September 2021 by lawyer for defendants, Mr. Baundo Francis to lawyer for complainant, Mr. Solomon Tongela putting Mr. Tongela on notice of his intention to file proceedings to dismiss the 10 cases on the basis that Mr. Jeffrey Dean Kennedy was away in Australia when his signature had been scanned and pasted onto the further amended originating processes filed on the 1^st of September 2021.
       
    7. Annexure “BF7” comprises a 1 page copy of a National Newspaper article dated 23^rd of April 2021 which reports of “Jeffrey Kennedy charged with raping, drugging, stalking teenage girl” in Brisbane, Queensland, Australia.
       
    8. Annexure “BF8” comprises 9 pages which composes firstly an Amended Complaint filed by the lawyer for the complainant on 27^th of August 2021 bearing signature of Mr. Solomon Tongela on behalf of Mr. McRonald Nale and secondly an Amended Summons to a person upon Complaint also filed on the 27^th of August 2021 and duly registered and issued by Port Moresby District Court as returnable on 30^th of August 2021 at 1:30pm for mention.
       
    9. Annexure “BF9” comprises 9 pages which composes firstly copy of a 6 pages Amended Complaint filed by the lawyer for the complainant on 1^st of September 2021 bearing signature of Mr. Jeffrey Dean Kennedy as Managing Director of the complainant at page 5 of the sealed complaint and secondly copy of a 3 pages Amended Summons to a person on Complaint filed by the lawyer for the complainant also on 1^st of September 2021 and duly sealed and issued by the Port Moresby District Court made returnable on 24^th of September 2021 at 1:30pm for mention.
       

6. RESPONDENT/COMPLAINANT’S RESPONSE AND ARGUMENT
   

15. The Respondent/Complainant’s submission was based upon its Submission Objecting To Application For Dismissal comprising 4 pages (including cover sheet) filed on Monday 27^th of September 2021 and had relied upon two affidavits filed by (1) Mr. Solomon Tongela on 22^nd of September 2021 and (2) Supplementary Affidavit of Mr. Jeffrey Dean Kennedy filed on 23^rd of September 2021.
    

7. EVIDENCE OF THE RESPONDENT/COMPLAINANT
   

16. The Respondent/Complainant relied upon two affidavits filed on 22^nd of September 2021 by Mr. Solomon Tongela and second one filed on 23^rd of September 2021 by Mr. Jeffrey Dean Kennedy.
17. Firstly, the evidence adduced in the affidavit of Mr. Tongela shows that he is a lawyer in employ of the complainant and at paragraph 3 he had deposed to fact that on 20^th of August 2021 this court had issued directions to amend its originating processes and on 27^th of August 2021 he had filed amended complaint and summons upon complaint then effected service upon the defendant (Para. 4).
    
18. In paragraph 5 of the affidavit, Mr. Tongela deposes that presiding magistrate dealing with those 10 eviction matters had directed for the complainant’s managing director to sign off on each of all the complaint forms of the originating process and not the lawyers who had carriage of the cases.
    
19. From paragraphs 6 to 8, Mr. Tongela deposes to facts that following the court’s directions of the 20^th of August 2021, lawyer for the complainant, Mr. Simon Dewe had subsequently communicated with Mr. Jeffrey Dean Kennedy, Managing Director of the complainant who was at that time in Australia who had then printed, signed and emailed scanned versions of the 10 complaint forms to Mr. Tongela thus exhibited as Annexure “A” in the affidavit which comprises a one page cover email of Mr. Tongela to Mr. Kennedy dated Tuesday 31^st of August 2021 with those instructions.
    
20. Secondly, the evidence adduced in affidavit of Mr. Jeffrey Dean Kennedy filed on the 23^rd of September 2021 did not provide any annexure material evidence but comprises 6 paragraphs which deposes at paragraph 1 to a fact that he is Managing Director (MD) of the complainant and in paragraph 3 he corroborated the statements of Mr. Tongela’s affidavit in saying that on 31^st of August 2021 he was informed by his lawyer, Mr. Simon Dewe that the court had given directions for him as the MD of the complainant to sign on the complaint and statement of claim instead of his lawyers.
    
21. In paragraphs 4 and 5 of his affidavit, the MD testified that in compliance with the court’s directions he had received the amended originating processes by email from his lawyer then subsequently printed the documents then signed and emailed signed versions of respective documents back to his lawyer to have those duly filed as ordered by the court. Finally, Mr. Kennedy deposed that the signatures carried on the amended complaint and statement of claim is genuinely signed by him.
    

8. THE AGREED FACTS
   

22. Following 5 primary facts are undisputed thus established on the balance of probabilities for purposes of determining the substantive issues in pursuing the orders sought in the notice of motion.
    
    1. Firstly, as enumerated from paragraphs B (5) to (11) and more particularly paragraph (7) of the Defendant/Applicants’ written submission tended in court on the 27^th of September 2021 that Mr. McRonald Nale is a sole proprietor and principal of Jema Lawyers and is a Director of Nett Holding Limited and his law firm is representing Nett Holding Limited as its client.
       
    2. Secondly, Mr. Jeffrey Dean Kennedy is a MD of Nett Holding Limited by virtue of his purported signature and capacity notarized on the amended complaint filed on the 1^st of September 2021.
       
    3. Thirdly, Mr. Jeffrey Dean Kennedy is at all material times not resident in Papua New Guinea. Thus his purported signature that is shown on subsequently amended complaint and amended summons to a person upon complaint filed on the 1^st of September 2021 is not directly signed by him personally within jurisdiction of this Court. It was acquired thus procured not directly but sourced externally and imprinted onto the amended originating processes by involving computer scanning and electronic methods to comply with the orders for amendment to the originating processes of the 20^th of August 2021.
       
    4. Fourthly, there is no dispute and it is admitted that the signature of Mr. Jeffrey Dean Kennedy was an electronically acquired signature of the MD as admitted in his affidavit filed on 23^rd of September 2021.
       
    5. Fifthly, at all material times there were two (2) originating processes for consideration before the court on this day the notice of motion was being heard. Firstly, an initially sealed amended complaint and sealed amended summons to a person upon complaint filed respectively on the 27^th of August 2021 and signed for Mr. McRonald Nale by his employed lawyer Mr. Solomon Tongela in accordance with the Court’s order of the 10^th of August 2021. Secondly, a subsequently amended complaint and amended summons to a person upon complaint filed on the 1^st of September 2021 and purportedly signed by Mr. Jeffrey Dean Kennedy as the MD of Nett Holding Limited while he had been resident overseas in Brisbane, Queensland, Australia.
       

1. PLEADINGS AND SUBMISSIONS
   

23. Paragraph D, sub-paragraphs (14) to (28) in the applicant/defendants’ submission related to the arguments put forward to substantiate the three grounds for dismissal relating to: (1) duplicity of proceedings, (2) scanned signature of Jeffrey Dean Kennedy and (3) admission by Mr. McRonald Nale to the issue of conflict of interest against himself.
    
24. The respondent/complainant’s responses are contained in its sealed Submission on Objection to Application for Dismissal filed on the 27^th of September 2021 comprising 4 pages (including cover sheet) in paragraph 2, sub-paragraphs (1) to (3) wherein the complainant seeks orders for dismissal of the defendants’ notice on motion on the following grounds:
    
    1. In relation to the issue of alleged scanned signature of the managing director (MD), the complainant submitted that there are no existing provisions within section 28 of the DCA or any other laws which prevented the complainant or its lawyer from providing a scanned signature while outside of this jurisdiction hence the amended complaint and statement of claim were duly signed by the MD in compliance with the orders of the court and properly admitted.
       
    2. However, the complainant’s lawyer did not address the court on relevance of sections 14 and 17 of the DCA. Section 14 presumes that the Port Moresby District Court is duly established with its own independent legal and procedural rules to effectively and efficiently conduct its administrative and judicial functions under the DCA and District Court Regulations and section 17 presumes that any adjudicatory business of the court can only be progressed lawfully by way of a leave through a lawful order of the court. Otherwise, whenever deemed silent by a way of a procedure then section 22 of the DCA may be appropriately applied or ultimately adherence to practice under National Court Rules, 1983. In this regard both counsels did not quote or sought to rely on any provisions of the National Court Rules.
       
    3. In relation to issue of alleged conflict of interest by Mr. McRonald Nale as a MD of the complainant under Rule 10 (3) and (4) of Professional Conduct Rules, 1989, the complainant rebutted by saying that the rules are intended to protect the interest of a client against his lawyer as pronounced in Peter Yama v. PNGBC PGSC 42; SC922 and furthermore that the complainant is a separate legal entity and it is entitled to legal representation of its own choice.
       
    4. The complainant/respondent relied on Macaura v. Northern Assurance Co. Limited [1925] AC 619 and T.T Angore Noa Hai Investment v. Buna [2019] PGNC 143; N7881 (24 May 2019).
       
    5. The complainant argued that Jema Lawyers is a separate legal entity which accepts instructions from the complainant to represent and defend its proprietary interest over its land.
       
    6. Furthermore, in sub-sub-paragraph (d) of its submission the complainant argued that Jema Lawyers is not a shareholder in the complainant company thus there is no conflict of interest between Jema Lawyers and the complainant as its client.
       
    7. The complainant further argued that the claim that the conflict of interest which draws a connection between the directors and shareholders of the two separate entities is misconceived.
       
    8. In sub-paragraph (3), the complainant argued that the defendant’s notice of motion is an abuse of the process in that it did not file a proper separate application for the other related proceedings.
       

10. SIX MAJOR ISSUES
    

25. The following are six legal issues which the court is required to address in order to apply the law to the facts of this case which will ultimately result in showing how the court had arrived at its verdict.
    
    1. Did the District Court have power to admit the amended complaint and amended summons to a person on complaint that were filed on the 1^st of September 2021 to be brought in as bearing the scanned signature of Mr. Jeffrey Dean Kennedy, the MD of the complainant when he was overseas? Given that the statutory power to file originating processes in this court is limited to geographical location for each of the provincial courts upon which a District Court had been gazetted as an official court location whereupon the court assumes its original jurisdiction to adjudicate matters only within its powers including its control on the pleadings.
       
    2. Did the court have power in admitting the amended complaint and amended summons to a person upon complaint bearing a scanned signature of the MD of the complainant, Mr. Jeffrey Dean Kennedy who had rendered those signed originating processes via email from Australia or printed in-house upon delegated instructions to his administrative staff to affix an electronic copy of his scanned signature on the originating processes while residing outside Papua New Guinea to be brought into the pleadings in compliance with the court’s order of the 20^th of August 2021 following leave granted to orders sought in the notice of motion filed on Friday 2^nd of July 2021?
       
    3. Did the court err by admitting the first amended originating processes signed initially for Mr. McRonald Nale as a MD of complainant on 27^th of August 2021 which constituted in fact and in evidence a conflict of interest contrary to Rule 10 (3) & (4) of Professional Conduct Rules, 1989?
       
    4. Did the court err in admitting the subsequent pleadings as a duplicity of proceedings firstly by way of an initial leave granted to complainant on Tuesday 10^th August 2021 and secondly on Friday 20^th August 2021 when the complainant was originally permitted to amend its originating processes pursuant to its notice of motion filed on the 2^nd of July 2021 then subsequently a second leave granted on the 20^th of August 2021 pursuant to section 138 of the DCA?
       
    5. Did the court have power in admitting into the amended pleadings as a result of its second orders of the 20^th of August 2021 for the complainant’s usage of a scanned electronic version of signature for Mr. Jeffrey Dean Kennedy as the MD of the complainant to be affixed on the amended statement of claim in the complaint which had been filed on the 1^st of September 2021?
       
    6. Does the court have original powers within section 28 of the DCA to admit any pleadings including an amended complaint and amended summons to a person on complaint which was signed and filed by a MD of the complainant company who had been temporarily a resident outside of PNG when at all material times the case had been progressed in his absence including outside from legal and geographical jurisdiction of the court?
       

11. THE RELEVANT LAW
    

26. There are three sets of statutory provisions relevant to determine this interlocutory application.
    

Sections 16, 17, 109, 112, 118 and 164 (1) (b) of Companies Act, 1997.

27. Section 16. Separate legal personality.

“A company is a legal entity in its own right separate from its shareholders and continues in

existence until it is removed from the register.”

28. Section 17. Capacity and powers.

(1) “Subject to this Act and to any other law, a company has, both within and outside the country—

(a) full capacity to carry on or undertake any business or activity, do any act, or enter into any

transaction; and

(b) for the purposes of Paragraph (a), full rights, powers, and privileges.

(2) The constitution of a company may contain a provision relating to the capacity, rights,

powers, or privileges of the company only where the provision restricts the capacity of the

company or those rights, powers, and privileges.”

29. Section 109. Management of company.
    
    • (1) “The business and affairs of a company shall be managed by, or under the direction or

supervision of, the board of the company.

(2) The board of a company has all the powers necessary for managing, and for directing and

supervising the management of, the business and affairs of the company.”

30. Section 112. Duty of directors to act in good faith and in best interests of company.
    

“(1) Subject to this section, a director of a company, when exercising powers or performing

duties, shall act in good faith and in what the director believes to be the best interests of the

company.”

31. Section 118. Disclosure of interest.
    
    • (1) A director of a company shall, forthwith after becoming aware of the fact that he is interested

in a transaction or proposed transaction with the company, cause to be entered in the interests register, and, where the company has more than one director, disclose to the board of the company (My emphasis).

(a) where the monetary value of the director's interest is able to be quantified, the nature and

monetary value of that interest; or

(b) where the monetary value of the director's interest cannot be quantified, the nature and extent

of that interest. (My emphasis).

32. Section 164 (1) (b). Company records.
    
    • (1) Subject to Subsection (3) and to Sections 68 and 189, a company shall keep the following

documents at its registered office:—

(a) the constitution of the company;

(b) minutes of all meetings and resolutions of shareholders within the last seven years; (Mine)

Sections 14, 17, 28 & 146 of District Courts Act and Forms 15 & 18 of DC Regulations, Ch. No. 40

33. Part IV (Commencement of Proceedings) provides for three modes of commencement by information, complaint or a traffic infringement summons. Information is generally laid to commence criminal proceedings and complaints are for civil proceedings.
    
34. Section 28 (Information and Complaints) is significant as it appears to allow a complaint to be laid by a person other than the complainant in person.
    

It states: Proceedings before a court shall be commenced—

(a) by an information or a complaint, which may be laid by the complainant in person, or by his legal

representative or other person authorized for the purpose; or

(b) by a Traffic Infringement Summons.

35. Under section 28 of the DCA, the court is required to ensure that all actions taken out for and on behalf of corporate entities must be clearly established under formal authority of the board of directors of the company under section 109 of the Companies Act and that obligation must be discharged through evidence under section 164 (1) (b) of the Companies Act by the way of a resolution at a formal board meeting conducted by the board of directors then formally signed off by the chairman of the board of directors.
    
36. It is a mandatory requirement of legal standing that the court must satisfy itself that any legal action taken for and on behalf of the company must meet the statutory requirement of legal standing under section 28 of the DCA.
    
37. Section 146 (Court to decide Case) of the DCA is also relevant as it enjoins the District Court to consider the whole matter before it in its entirety followed by rendering its verdict. Section 146 is in Part VIII (Proceedings in Connexion with Complainants). It states:

“The Court, having heard what each party has to say and the evidence adduced by each, shall consider and determine the whole matter, and shall make an order against the defendant or dismiss the complaint, or make an order against the complainant or dismiss the set-off, as the case requires.”

Rule 10 (3) & (4) of Professional Conduct Rules, No. 8 of 1989

38. Rule 10. CONFLICT OF INTEREST.
    

“(3) If a lawyer has or acquires any interest in a matter and he –

(a) wishes to accept; or (b) has accepted,

instructions from a client, touching on that matter, he shall-

(a) decline to represent; or (b) withdraw from representing,

that client, unless the client is fully informed in writing of the lawyer’s interest in the matter and
the client voluntarily assents in writing to the lawyer acting or continuing to act on his behalf.”

“(4) A lawyer or a firm of lawyers shall not represent or continue to represent conflict of interests
in litigation.”

50. APPLYING THE LAW AND CASE LAWS TO THE FACTS
    

39. No notice of objection under section 35 (2) of Evidence Act, Ch. No. 48 were filed by either parties to contest the two respective affidavits relief upon by each of the both parties so the court’s close examination of affidavits relied upon by applicant/defendant had shown the following evidence.
    
40. In response to paragraph 14 of the defendants’ submissions, the respondent/complainant had argued at paragraph 2 (2) of its submissions that the alleged conflict of interest claimed between the complainant and its lawyers is misconceived under Rule 10 (3) & (4) of the Professional Conduct Rules as it is applied solely to protect the interest of a client against his lawyer (s) thus it had relied on case law pronounced in case of Peter Yama v. PNGBC PGSC 42; SC922.
    
41. Taking into consideration both affidavits of Mr. Simon Tongela filed on the 22^nd of September 2021 and Mr. Jeffrey Dean Kennedy filed on the 23^rd of September 2021 and applying the case law of Peter Yama v. PNGBC PGSC 42; SC922 being relied upon by the complainant to rebut the first claim against the defendant, the court is not satisfied with the complainant’s rebuttal. It is because in the above Supreme Court case, the law which is being relied upon was not of a lawyer and client relationship, where the three-men bench of Sakora, J., Gabi, J. and Hartshorn, J. had pronounced that:
    

“Held:

1. The Guarantors are not clients of Gadens Lawyers or Mr. Erik Andersen and are therefore

unable to rely on the provisions of Rule 10 Professional Conduct Rules.

2. Gadens Lawyers and Mr. Erik Andersen do not have a conflict of interest in acting for PNGBC.

The application for them to be disqualified or restrained from acting for PNGBC in these proceedings is refused.”

42. It is clearly different in this case where there is an existing legal relationship of lawyer and client present between Nett Holding Ltd as client and Jema Lawyers as its lawyers on court’s records wherein the prohibition of Rule 10 (3) & (4) of the Professional Conduct Rules 1989 shall be applied.
    
43. It is clear that Delta Corporation Ltd is a co-shareholder of Nett Holding Ltd and furthermore Mr. Jeffrey Dean Kennedy is a co-shareholder of Delta Corporation Ltd therefore he is clearly in a conflict of interest in his capacity to be signing the originating processes related to these 10 cases.
    
44. Thus court’s order of 27^th September 2021 was aimed to cure this legal defect and allow complainant to file fresh proceedings expeditiously but in accordance with proper procedures with another independent director of complainant to sign a new originating process to initiate fresh proceedings.
    
45. The court had accepted and admitted in totality all of the exhibits numbering from Annexures “BF1” to “BF9” attached to the affidavit of Mr. Baundo Francis that was filed on the 21^st September 2021. That set of documentary evidence was relied upon by the court to consider the application of the

defendant that sought orders stipulated in its notice of motion filed on the 21^st of September 2021.

46. In the present case the complainant Nett Holding Limited is in fact a paying client of Jema Lawyers as admitted in paragraphs 2 (2) (b) (c) & (d) of complainant’s submission where it is submitted that the complainant is a separate legal entity and is entitled to legal representation of its own choice and Jema Lawyers is a separate legal entity who accepts instructions from complainant to represent and defend its proprietary interest over its land and Jema Lawyers is not a shareholder of the complainant.
    
47. The court is satisfied in fact with Annexure “BF1” in affidavit of Mr. Baundo Francis filed on 21^st of September 2021 that Mr. McRonald Nale is sole proprietor of Jema Lawyers as shown in Certificate of Registration of Business Name for Jema Lawyers issued by AROC on 14^th August 2021.
    
48. The court is also satisfied in fact with Annexure “BF2” attached to the affidavit of Mr. Baundo Francis filed on the 21^st of September 2021 that both Mr. McRonald Nale and Mr. Jeffrey Dean Kennedy are duly appointed as two of four directors of Nett Holdings Ltd as exhibited on page 3 of the 4 pages Company Extract of Nett Holding Ltd No. 1-1126 issued on the 14^th of August 2021.
    
49. Furthermore, the court is satisfied in fact that at page 4 of the stated company extract of Nett Holding Limited, it is exhibited that Delta Corporation Limited Entity No. 1-8746 and appointed on 15^th of December 2021 is duly registered as one of five registered shareholders of Nett Holding Limited.
    
50. On this finding the court does not accept the argument put forward by the complainant at paragraph 2 (2) (b) of its submission that:
    

“The complainant is a separate legal entity and is entitled to legal representation of its own choice. A shareholder has no proprietary interest in the assets of the company:”

51. However, in the contrary the court finds in fact that Mr. Jeffrey Dean Kennedy had knowingly and deliberately arranged for his scanned signature to be printed on the amended complaints that were filed on the 1^st of September 2021 while he had been overseas in Brisbane, Queensland, Australia. By this very act of purportedly signing the amended complaints as part of subsequent orders to amend the originating processes he had breached Rule 10 (3) & (4) of the Professional Conduct Rules 1989.
    
52. By signing the amended complainants which bears his scanned signature and notarized officially as a MD of Nett Holding Ltd, he had invoked under the Companies Act 1997 both his official capacity as MD of Nett Holding Ltd and secondly as a shareholder of Nett Holding Ltd through his shareholding in Delta Corporation Ltd which is 1 of 5 co-shareholders of the complainant. It is clear that Mr. Jeffrey Dean Kennedy had breached his fiduciary duty under sections 112 and 118 of the Companies Act 1997 to declare his personal business interests in Nett Holding Ltd and Delta Corporation Ltd.
    
53. The court finds at page 2 of Annexure “BF3” in affidavit of Mr. Baundo Francis filed 21^st September 2021 that Mr. Jeffrey D. Kennedy and Mr. McRonald Nale are 2 of 3 directors of Delta Corporation Ltd.
    
54. The court finds in fact at page 3 of 4 in the Company Extract for Delta Corporation Ltd that Mr. Jeffrey Dean Kennedy is a duly registered shareholder of Delta Corporation Ltd.
55. In the summary of this evidence the court is satisfied on the balance of probability that Mr. Jeffrey Dean Kennedy is a duly registered shareholder of Delta Corporation Ltd appointed on 27^th of June 2013 and Delta Corporation Ltd is one of a duly registered shareholder of Nett Holding therefore it is clearly a direct breach of Rule 10 (3) & (4) of the Professional Conduct Rules, 1989 for Mr. Jeffrey Dean Kennedy to have signed and issued the amended complaint filed on the 1^st of September 2021.
    
56. The court is satisfied that the purported electronically scanned signature of Mr. Jeffrey Dean Kennedy imposed on the amended complaint filed on the 1^st of September 2021 shall be struck out on the basis that Mr. Jeffrey Dean Kennedy when he had authorized his scanned signature to be acquired and imprinted on the amended complaint at all material times he had acted in his dual capacity as a shareholder and MD of Nett Holding Ltd through Delta Corporation Ltd which constitutes a clear professional breach of the Professional Conduct Rules, 1989 vicariously for and on behalf of Mr. McRonald Nale who had authorized his lawyer to sign the initial originating process.
    
57. The court’s order of the 27^th September 2021 is intended for the amended pleadings and originating processes to be re-filed with another neutral MD of the complainant/Nett Holding Ltd to sign a new complaint in order to comply with the requirements of section 28 of the DCA.
    
58. It is the court’s duty to always ensure that matters brought before it for adjudication shall clearly meet statutory requirements of section 28 of the DCA thus is obligated to sanction any persons including lawyers or a MD who maintain a shareholding in proprietorship of an entity who are in a major risk of a conflict of interest when receiving instructions from same entity for purposes of prosecuting a case for and on behalf of the entity such as demonstrated in this case.
    
59. Ultimately on evidence, the court is satisfied that there are no formal records of an official company board resolution duly moved and resolved with recorded meeting minutes notarized by the Board of Directors and its executive secretariat of Nett Holding Ltd pursuant to sections 109, 112, 118 and 164 (1) (b) of the Companies Act 1997 which clearly gives lawful powers under section 109 to both Mr. McRonald Nale, Mr. Jeffrey Dean Kennedy or Jema Lawyers to file these 10 eviction proceedings.
    
60. The court is satisfied on the balance of probability therefore that these 10 ejectment proceedings were being filed in breach of the company formal procedures under section 109 of the Companies Act and shall be returned to its board room to seek further and legitimate sanctioning to acquire the lawful authority in law to then progress these cases after the affected MDs of both Jema Lawyers, Nett Holding Limited and Delta Corporation Limited have clearly declared their inherent business interests in these actions pursuant to sections 109, 112 and 118 (1) and (2) of the Companies Act.
    
61. By adopting the position followed at Kopen Yanda v Apostolic Church Properties Association of PNG Inc (2006) N3042, His Honor, Justice David Cannings held as follows:
    

“(1) It is clear that the respondent association is the lessee of the land on which the appellants are living.

(2) It is not clear that the proceedings in the District Court were instituted with the authority of the

association. On the contrary it is clear that the District Court proceedings were improperly instituted.

(3) The District Court failed to conduct adequate inquiry to satisfy itself that the proceedings were properly

instituted. (My emphasis).

(4) Proceedings under the Summary Ejectment Act are intended to provide a quick remedy to people who have

a clear title to premises.

(5) Here the title was clear but the individual persons who initiated the proceedings in the District Court in

the name of the respondent appear to have deliberately or inadvertently misrepresented their authority to

do so. (My emphasis).

(6) There was a substantial miscarriage of justice and accordingly the appeal was upheld and the orders of

the District Court quashed.”

62. Pursuant to section 28 of the DCA, the court is obligated to ensure that its processes were not misapplied or abused by unscrupulous litigants or unauthorized persons disguised as representing a genuine party pursuing a purported cause of action contrary to section 109 of the Companies Act.
    
63. In its statutory obligation of ensuring that the court had protected itself from such a frivolous claim, the magistrate had issued those two directions of the 10^th of August 2021 and the 20^th of August 2021.
    
64. It is distinctively clear from the above Supreme Court case that the three guarantors namely Peter Yama (first appellant), Agatha Yama (second appellant) and Mary Yama (third Appellant) were found by the Supreme Court as not clients of Gadens Lawyers or Mr. Erik Anderson consequently were unable to rely on the provisions of Rule 10 of The Professional Conduct Rules, 1989.
    
65. In the present case the court finds that the complainant’s reliance on the application of the principles of Rule 10 enunciated in the above Supreme Court case cannot be satisfied and accepted on the balance of probability as the facts of that case are not similar in this particular case.
    
66. In the present case Nett Holding Ltd is shown as proprietor of certain State leases and had taken out those eviction proceedings to seek vacant possession of these parcels of land currently being occupied by the settlers thus Nett Holding Ltd had conveniently sought legal assistance from Jema Lawyers to take out those ten eviction cases for it namely DC. Nos. 62, 63, 64, 65, 66, 67, 68, 69, 70 and 71 of 2021. Since Mr. McRonald Nale is a co-director of Nett Holding Ltd and the sole owner and proprietor of Jema Lawyers, a minimum requirement of section 118 of Companies Act must be met.
    
67. No issues were raised if Jema Lawyers had been paid professional legal fees by the complainant in order for Jema Lawyers to institute the 10 legal proceedings against the defendants however that matter is irrelevant for the court to consider the notice of motion.
    

13. CONCLUSION
    

68. Pursuant to 146 of DCA the Amended Complaint and Amended Summons to a Person on Complaint filed and issued by Port Moresby District Court respectively on Monday 1^st of September 2021 for the complainant in relation to the 10 proceedings of DC Nos. 62, 63, 64, 65, 66, 67, 68, 69, 70 and 71 shall be struck-out for want of form and furthermore on following basis thus the complainant is at liberty to file fresh proceedings after curing those stated procedural defects:
    
    1. Mr. Jeffrey Dean Kennedy was at all material times not resident in Papua New Guinea thus his purported signature that is shown on the subsequently filed amended complaint and summons to a person on complaint dated the 1^st of September 2021 was not directly signed by him personally at Port Moresby but was acquired and procured not directly but sourced externally and imprinted on the amended originating processes by computer scanning and electronic methods to comply with the orders of the 20^th of August 2021 is in breach of section 28 of the DCA, when leave had not been initially sought and granted by the court.
       
    2. The complainant’s argument under paragraph 2 (1) (a) of its submission that section 28 of the DCA or any other laws does not prohibit Mr. Jeffrey Dean Kennedy from filing his amended originating processes outside the court’s jurisdiction by way of his amended complaint bearing his scanned signature on the complaint form is in breach of Form 15 and Form 18 of District Courts Regulations Ch. No. 40 and shall be struck out as being defective and filed without the granted leave of the Court under sections 22 and 138 of the DCA. The District Court is a creature of statute and its magistrates are judicially obligated to uphold practices and procedures defined in law as well as by stipulations in the regulations so that the intent and spirit of the provision of section 28 of the DCA is duly maintained at all times.
       
    3. Although the court had on Friday 20^th of August 2021 for a second time directed for the complainant to file and serve a further amended originating process by Friday 27^th of August 2021, the complainant had gone outside an original jurisdiction of the Court. Thus had failed to seek specific leave of the court by virtue of section 138 of the DCA prior to admitting into the current pleadings by way of the further Amended Complaint and further Amended Summons to a Person on Complaint filed on Wednesday the 1^st of September 2021 bearing a scanned signature produced by Mr. Jeffrey Dean Kennedy that had been proven in both evidence and in fact at all material times he had been resident outside of the jurisdiction of the court.
       
    4. Therefore, the further amended originating processes filed by the complainant on the 1^st of September 2021 in its endeavor to comply with the court’s directions of Friday the 20^th of August 2021 shall be deemed as not meeting the statutory requirements within section 28 of the DCA.
       
    5. At the time of hearing this notice of motion the court finds on the facts before it that there are 2 sets of complaints and summons to a person upon complaint filed respectively on 27^th August 2021 and subsequently on 1^st September 2021 thus on face of the 2 sets of originating processes they are identical thus described as Amended Complaint and Amended Summons Upon Complaint.
       
    6. The court is satisfied that until the amended originating processes were amended prior to this hearing, they stand as a duplication of the cover sheets of the processes and not necessarily the content of each statement of claim but this defect is such a trivial mistake any lawyer cannot make but for whatever reasons must seek subsequent leave of the court to file any other amendments.
       
    7. However, since the complainant was granted leave under section 138 of the DCA, on the 20^th of August 2021 to file a second set of amended originating processes following the first order of court for an initial amendment to originating processes on the 10^th of August 2021, the lawyer for the complainant was obligated to appropriately label and describe the second set of originating processes correctly as “Further Amended Complaint” and “Further Amended Summons to a person on Complaint” for purposes of correctly complying with Form 15 (Complaint) and Form 18 (Summons to a person on Complaint) of the District Court Regulations, Ch. No. 40.
       
    8. Since lawyer for the complainant had not complied with both Forms 15 and 18 of the District Court Regulations, the court is satisfied on the balance of probability that the complainant had not satisfied the minimum requirements of both the regulations and section 28 of the DCA.
       
    9. In relation to the complainant’s non-compliance with the latter order of the 20^th of August 2021 to correctly file a “Further Amended Complaint” and “Further Amended Summons to a person on Complaint”, the court adopts His Honor, Justice Miviri’s sanctioning in dealing with litigants who disobey court orders who said:
       

“(1) Court Orders and directions must be complied with and non-compliance shows disrespect to the Court and is at the peril of the defaulting party; and

(2) the defaulting party must provide a reasonable explanation for the default”

in Gumanch Muipulg Wampnga Ltd v. Benjamin Samson as then ROT & Ors [2020] PGNC 267; N8490 (4 September 2020) which had cited Supreme Court case in Philip v. Tiliyago [2019] PGSC 19; SC1783.

10. Pursuant to sections 22 and 146 of the DCA, the court shall strike-out the complainant’s Amended Complaints and Amended Summons upon Complaints filed on the 1^st of September 2021 firstly for not correctly complying with the orders of the 20^th of August 2021 and secondly for want of compliance with Forms 15 and 18 of the District Court Regulations.
    
11. The complainant is at liberty with an option either to wait for Mr. Jeffery Dean Kennedy, its MD to return to Port Moresby from Australia in order to sign an original Amended Complainant and Amended Summons to a Person on Complaint or in the alternative opt to nominate one of its other directors who is physically available within Port Moresby to sign the updated originating processes in compliance with the court’s directions of the 20^th of August 2021 pursuant to the statutory requirements for section 28 of the DCA.
    
12. Pursuant to section 146 of the DCA, the court is satisfied on the balance of probability that Mr. Jeffrey Dean Kennedy is a duly registered shareholder of Delta Corporation Ltd who was appointed on the 27^th of June 2013 thus Delta Corporation Ltd is one of a duly registered shareholder of Nett Holding Ltd.
    
13. Therefore, it is clearly in direct breach of Rule 10 (3) and (4) of the Professional Conduct Rules, 1989 for Mr. Jeffrey Dean Kennedy to have signed and notarized the formal issuance of the amended sets of complaints filed on the 1^st of September 2021 in his capacity simultaneously as both the MD and shareholder of Nett Holding Limited consequently the amended originating processes shall be struck-out for want of form and in breach of section 28 of the DCA.
    
14. The court is satisfied that there are no formal records of an official company resolution duly moved and resolved with recorded meeting minutes notarized collectively by the Board of Directors and its executive secretariat of Nett Holding Ltd pursuant to sections 109, 112, 118 and 164 (1) (b) of the Companies Act, 1997 which clearly gives lawful powers to both Mr. McRonald Nale and Mr. Jeffrey Dean Kennedy to file these 10 eviction proceedings initially and also in the later stage of the amended originating processes.
    
15. The court finds the 10 proceedings being filed by the complainant were in breach of the company formal procedures and shall be returned to its board room to seek a legitimate sanctioning under section 109 (1) of Companies Act to acquire lawful authority in law to then progress these cases.
    
16. The court have a statutory duty to protected itself from defective pleadings where it had issued the 2 directions of the 10^th and 20^th of August 2021 to cure these defects however the lawyer for the complainant did not seek further orders under section 138 of the DCA to acquire a specific leave of the court to make those critical added amendments but had opted not to do so until on hearing.
    
69. In relation to the six legal issues raised in this hearing, the court answers each one in the following:
    
    1. With regards to the first legal issue, the court had found that the amended statement of claim contained in subsequently filed amended originating processes bearing the scanned signature of Mr. Jeffrey Dean Kennedy was filed on the 1^st of September 2021 but were defective for want of seeking prior leave of court and shall be struck-out as being solicited outside of the court’s statutory jurisdiction contrary to sections 14 and 17 of the DCA. The court is obligated by sections 14, 17 and 28 of the DCA to regulate its own practices and procedures in its jurisdiction.
       
    2. With regards to the second legal issue, the court had found that the scanned amended complaint filed as part of the complainant’s amended originating processes on 1^st of September 2021 were defective for want of form and undertaken without prior leave of the court and shall be struck-out.
       
    3. In relation to the third legal issue, the court finds that clearly Mr. Jeffrey Dean Kennedy is a MD of Nett Holding Ltd and is also a co-shareholder of Nett Holding Ltd through his shareholding in Delta Corporation Ltd which is a shareholder company of Nett Holding Ltd thus he is one of four directors of Nett Holding Ltd together with Mr. McRonald Nale as sole proprietor of Jema Lawyers.
       
    4. By reason of Mr. McRonald Nale’s official capacity as a co-director of Nett Holding Ltd and also a sole owner of Jema Lawyers, he is duly required under section 118 (b) of the Companies Act, 1997 to disclose his interest in any dealings which Nett Holding Ltd had considered at the board level to make a decision to instruct Jema Lawyers to take out the 10 legal actions for and on behalf of Nett Holding Ltd. The court finds that no evidence was provided to meet this legal duty.
       
    5. By virtue of sections 112 and 118 (a) & (c) of the Companies Act the court is satisfied that Mr. McRonald Nale had used his position as a co-director at the board level of Nett Holding Ltd to benefit from decision of the board to assign the legal work in this 10 actions to Jema Lawyers when Mr. McRonald Nale had not filed any evidence under sections 109, 112, 118 and 164 (1) (b) of Companies Act to rebut the claim of defendants submitted in paragraph 28 of their submission.
       
    6. Therefore, the court is satisfied on the balance of probability that Mr. McRonald Nale had a conflict of interest in his capacity as a co-director of Nett Holding Ltd and inherently as sole proprietor of Jema Lawyers contrary to Rule 10 (3) & (4) of The Professional Conduct Rules, 1989.
       
    7. In applying the case of Peter Yama v. PNGBC PGSC 42; SC922 to this issue, the court is satisfied in fact that Nett Holding Ltd is a client of Jema Lawyers whose sole proprietor Mr. McRonald Nale have a seat in the board of directorship of Nett Holding Ltd and up to the date of this hearing he has not filed any disclosure of interest of his law firm under section 118 of the Companies Act in his primary obligation as a director under section 112 of the Companies Act.
       
    8. The court is satisfied that without any evidence offered by Mr. McRonald Nale under section 164 (1) (b) of the Companies Act to clearly show that he had declared his interest under section 118 (a) & (b) of the Companies Act in order to rebut the allegation of a conflict of interest under Rule 10 (3) & (4) of Professional Conduct Rules, 1989 the court is unable to consider clearly his position of conflict of interest and accepts it as an admission on his part to his personal detriment.
       
    9. In relation to the fourth legal issue, the court is satisfied that without striking out the initial amended originating processes filed on the 27^th of August 2021 and making an order for the subsequent amended originating processes filed on the 1^st of September 2021, the complainant had maintained the same description of Amended Complaint and Amended Summons to a person on Complaint which clearly is confusing to the court and the parties.
       
    10. The lawyer for the complainant is obligated to correctly label the latter amended originating processes as “Further Amended Complaint” and “Further Amended Summons to a person on Complainant” which was not done thus time had overtaken any opportunity the complainant could have had to opt for a third attempt under section 138 of the DCA to acquire the court’s leave for this cosmetic amendment.
        
    11. The court is satisfied that without a subsequently secured leave of court granted to the complainant to correctly amend the second set of amended originating processes to be duly described as “Further Amended Complaint” and “Further Amended Summons to a person on Complaint” with further orders to strike out the initially amended originating processes filed on the 27^th of August 2021, then at all material times the court had been seized with 2 identically amended originating processes amounting to an abuse of court’s processes as a duplication of originating processes and shall be struck-out pursuant to sections 22, 138 and 146 of the DCA.
        
    12. In relation to the fifth legal issue, the court finds that Mr. Jeffrey Dean Kennedy had clearly admitted that his scanned signature had been acquired from him electronically for the purposes of filing the amended originating processes in the statement of claim on the 1^st of September 2021, therefore the court is satisfied that the entire 10 proceedings shall be struck-out as the amended statement of claim signed by Mr. Jeffrey Dean Kennedy did not acquire a prior leave of the court.
        
    13. In regards to the sixth legal issue, the court is satisfied that the complainant had not specifically sought leave of this court to file the amended originating processes by inclusion of the signed statement of the claim which bears scanned signature of Mr. Jeffrey D. Kennedy while overseas.
        
70. In the final analysis, the court shall strike-out the complainant’s amended statement of claim and the entire amended originating processes for all these 10 actions for summary ejectment filed on the 1^st of September 2021 as an abuse of the court’s processes pursuant to following provisions:
    
    1. sections 14, 17, 22 and 28 of the District Courts Act wherein the court self-regulates its own practice and procedures to the exclusion of acts and omissions committed outside its jurisdiction;
       
    2. section 146 of the DCA, the court is satisfied on the balance of probabilities that Mr. McRonald Nale had a conflict of interest in his capacity as co-director of Nett Holding Ltd and inherently as sole proprietor of Jema Lawyers contrary to Rule 10 (3) & (4) of the Professional Conduct Rules;
       
    3. section 146 of the DCA, the court is satisfied in fact that Nett Holding Ltd is a client of Jema Lawyers whose sole proprietor Mr. McRonald Nale have a seat in the board of directorship of Nett Holding Ltd and up to the date of this hearing he has not filed any disclosure of interest of his law firm under section 118 of the Companies Act in accordance with his primary legal obligation as a director under sections 112 (a) & (b) and 164 (1) (b) of the Companies Act;
       
    4. section 138 of the DCA had not been subsequently utilized by the complainant to correct the critical anomaly of a duplicated amended originating process filed initially on the 27^th of August 2021 and subsequently on the 1^st of September 2021 by going forward with a “Further Amended Complaint” and “Further Amended Summons to a Person on Complaint” consequently the court had been seized with the 2 identically amended originating processes amounting to an abuse of court’s processes as a duplication of originating processes which shall be struck-out; and
       
    5. the court is satisfied that the complainant had not specifically sought leave of this court to file the amended originating processes by inclusion of the signed statement of the claim which bears scanned signature of Mr. Jeffrey D. Kennedy while he had been overseas outside this jurisdiction.