Wanis v Kokiva [2021] PGNC 149; N8876 (11 June 2021)

N8876

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 15 OF 2020 (IECMS)

BETWEEN:
PETER WANIS
First Plaintiff

AND:
ANTON PEPA KALUNI
Second Plaintiff

AND:
HARRIET KOKIVA, In her Capacity as Acting Registrar of Association & Companies.
First Defendant

AND:
INVESTMENT PROMOTION AUTHORITY.
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
PHILIP MUNGALO & NICKER PULI KIPU
Fourth Defendant

Waigani: Miviri J
2021: 20^th May, 11^th June

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Leave application for Judicial Review – Notice of Motion – Notice pursuant to Order 16 Rule 3 (3) NCR – Statement pursuant to Order 16 Rule 3 (2) (a) NCR – Undertaking as to Damages – Affidavit verifying Facts – Delay – Arguable case – Matter internal to Association – Not against duties & discretion of Registrar – Balance Not discharged – Leave refused – cost in the course.

Cases Cited:

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Wahune v Barton [2017] PGSC 40; SC1636
Kalinoe v Paraka Lawyers [2014] PGSC 38; SC136

Asakusa v Kumbakor, Minister for Housing [2008] PGNC 39; N3303

Barrick (Niugini) Ltd v Nekital [2020] PGNC 180; N8409

Schram v Papua New Guinea University of Technology [ 2012] PGNC 245; N4992
Counsel:

J. Lome, for First & Second Plaintiffs
H. White, for the State
RULING

11^th June, 2021

1. MIVIRI, J: This is the Ruling on the plaintiff’s originating summons of the 12^th June 2020 for leave to apply for judicial review pursuant to Order 16 Rule 13 (1) of the National Court Rules.
   
2. The decision sought to be reviewed is of the Registrar the first defendant of the 05^th June 2020. The plaintiffs are executives of an association known as the Porgera Mt Kare Young Generations Association Inc. The first plaintiff alleges that he was unlawfully removed from the IPA records by the first defendant on the 05^th June 20 following the death of one Jonah Puli Kipu. Which is an external matter unbeknown to the Registrar unless forms were filled and lodged of that fact to amend the records.
   
3. He was not notified of his removal by the first defendant. There is no process under the Association Incorporation Act except that section 5 of that Act allows for appeal to a principal Magistrate. This is in relation to registration of an association and not of election of office bearers.
   
4. It is important to set out relevant sections of the Associations Incorporation Act 1966 in particular section 13 Public Officer. It reads;
   

“ (1) The committee of an incorporated association must, within 14 days after the incorporation of the association under this Act, appoint a natural person who ordinarily resides in the country to be the public officer of the association and, if the office becomes vacant, must, within 14 days after it becomes vacant, appoint a natural person who ordinarily resides in the country to fill that vacancy.

(2) If the committee of an incorporated association fails to comply with Subsection (1), the association is guilty of an offence.

Penalty: A fine not exceeding K20.00.

Default penalty: A fine not exceeding K2.00.

(3) The public officer of an incorporated association may, unless the rules of the association otherwise provide, hold any other office in the association except the office of auditor.

(4) Notwithstanding that the rules of an incorporated association do not make provision for the appointment of a public officer, the association has, by virtue of this Act, power from time to time to appoint a public officer and to remove any person so appointed from his office as public officer.

(5) The office of public officer of an incorporated association becomes vacant if the person holding that office–

(a) dies; or
(b) becomes bankrupt, or applies to take or takes advantage of any law relating to bankrupt or insolvent debtors or compounds with his creditors, or makes any assignment of his estate for their benefit; or
(c) becomes of unsound mind; or
(d) resigns his office by writing under his hand addressed to the committee of the association; or
(e) ceases ordinarily to reside in the country; or
(f) is removed from office.

(6) Notwithstanding the preceding provisions of this section, until such time as a person is appointed under this section to be the public officer of an incorporated association, the applicant for the incorporation of the association, shall be deemed, for the purposes of this Act, other than of Section 14(a), to be the public officer of the association.

Section 14. NOTIFICATION OF APPOINTMENT, ETC., OF PUBLIC OFFICER.

A public officer who fails–

(a) within 14 days of his appointment as public officer; or
(b) within 14 days after the change of his address,

to notify the Registrar of his appointment and his full name, address and occupation, or of the change of address, as the case may be, is guilty of an offence.

Penalty: A fine not exceeding K40.00.

Default penalty: A fine not exceeding K5.00.”

5. It is clear by this section that the appointment of a Public Officer of that Association is the responsibility of the Association here, Porgera Mt Kare Young Generations Association Inc. So as here in the death of the incumbent it would be the responsibility of the association not the first defendant to be versed of that fact to amend the records. So her duties are called after the relevant form is lodged by members of the Association. And if for the reasons as here death of the incumbent, within 14 days another person must be so appointed to fill that chair. It is neither the duty nor responsibility of the registrar. And he would not be right to insert names in a form. It is clear the forms filed will emanate from the Association not her.
   
6. To advance their cause the plaintiffs rely on the affidavits of Peter Wanis sworn of the 09^th June 2020 filed 12^th June 2020. And secondly that sworn and filed 27^th July 2020. The examination of this evidence shows that this is really an argument between the officials to that association as to who is a proper person holding the office of a Public Officer within that association. That is a matter within the discretion of that association and not of the office of the Business Registration and Certificate Division of the Investment Promotion Authority, nor of the first defendant. And the law set out above settles this issue against the First defendant if there is any doubt to it. And this is clear from annexure “I” of the affidavit of Peter Wanis sworn of the 09^th June 2020 filed 12^th June 2020. That annexure relevantly refers, “In the meantime, a review of our records reveals that the filings made on 25^th February 2020 are flawed and therefore every filing after that were accepted in error. Accordingly, for the integrity and protection of the records maintained in the registry, we will reject and return those filings to revert records back to Status Quo. Any grievances regarding the changes to the Association’s records can be litigated between the parties in court for the court to determine which parties are the genuinely appointed executives of the Association. The Registrar of Companies is merely a registry and not an adjudicator of who are the legitimate executives or public Officer, therefore, the best avenue to resolve these issues are in Court whereby all disputing parties can present their case for the court’s ultimate decision.

We trust that you will review your position and advice our office of the same. Should you have any queries contact our Senior Enforcement Lawyer-Ms Manilah Apawa on telephone [phone] or by email at [e-mail].”

7. That letter is signed by the first defendant. It acknowledges filing that was made by the parties which had flaws and would have added to errors on the records, thus would have had questions upon the integrity of the records maintained. Those filings were not accepted but were returned to the persons who sought to file and to make the changes. It means the initial records within were maintained, a status quo was maintained. That is in order because it would appear from what is set out by the Registrar first defendant, that there was dispute between the parties as to who was a proper public official of that Association. It rightly concluded that it was not an adjudicator and referred the parties to court to settle. It simply maintained the records as a registry. This is borne out by the annexure “J” of the affidavit relied of Peter Wanis set out above.
   
8. Which is reaffirmed by annexure “K” letter dated 05^th June 2020 attached to the affidavit of the Peter Wanis. Of particular relevance to the issue raised are the following, “With regards to maintaining status quo, our position remains and the Association’s records will revert to 12^th February 2020. This is because we received a complaint from Mr. Philip Mungalo and Mr. Nicker Puli Kipu regarding the unauthorized lodgement well before any other developments. We were already in the process of ratification when your firm served on our office the Court documents, as such we will proceed to completing this process. We believe that our administrative actions are necessary to protect the integrity of this office and to allow the appropriate parties to seek the Court’s view on the disputes associated with the Association rather than pin the issue directly on the Registrar of Associations.

Furthermore, we are not restrained by any court order or injunction that we any actions we take may be in contempt. We are attending to filing our Notice of Intention to defend and we wills serve on your firm shortly. At this Stage, we believe that the two factions in this scuffle should readily be the relevant parties battling in court for determination of the genuinely appointed executives of the Association. Our office is a nominal party to this dispute as we only facilitate registration and record keeping for associations. We will be bound by whatever decisions the Court makes in due course.

We have advised Mr. Philip Mungalo and his lawyer of the court summons filed on behalf of the Association and they are preparing to file an application for joinder. We are of the view that this application is necessary for the ultimate determination of the real issues and we are in support of it. We therefore suggest you concentrate on ironing out issues with the other disputing party as a step forward in this matter. We trust that you will understand the position we take and will assist in resolving this matter swiftly.”

9. This is very clear language that the scuffle is over the position or Public Officer within that Association. It is a matter between the plaintiffs and the other disputing parties, Mr. Philip Mungalo and Mr. Nicker Puli Kipu regarding the unauthorized lodgement. It is therefore not the making of the first defendant in her capacity as the Registrar of Associations and Companies. But rather a dispute within the association which it must resolve within its discretion not outside into the domain of the first defendant. She has pointed out she is not a party to that dispute; she is a nominal defendant as she maintains the records in her official capacity no more no less.
   
10. It is not a dispute involving the discharge of a public official in her duties which has rendered equity demanding of the plaintiffs against. Because the filing of the forms to set up the Association and composition of its public Officials are not the prerogative of the first defendant. They are of the persons, here the plaintiffs and those who are of that Association named Porgera Mt Kare Young Generations Association Inc. Including the objecting parties of Mr. Philip Mungalo and Mr. Nicker Puli Kipu regarding the unauthorized lodgement. It is therefore clear that the plaintiffs have no locus standi demonstrated against the first defendant so as to fill the balance required for leave for judicial review. They are not affected by a decision of the first defendant. It is a matter within that association and it is for them not for the first defendant. Standing is not made out and fails against the plaintiffs. It is within the internal processes of that association to set right the appointee of that office. Hence it is not in the domain for leave for judicial review no public duty has been performed so that equity demands leave be granted.
    
11. It follows that there is really no arguable cause demonstrated on the balance required against the first defendant by the plaintiffs for leave to be accorded. Because it is not in reference to a breach of Statute that has led to the first Defendant acting outside the ambit of that Statute. The plea invoking ultra-Vires would be against Statute or law; it is not in a vacuum without any legs. To gloss it another way for all it is worth the registrar has acted within the bounds of that Statute: Associations Incorporation Act 1966. It is not pleaded and if viewed in the proper pleadings test set out by Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014), it is not properly founded the action has no proper pleadings to drive the cause of action, Wahune v Barton [2017] PGSC 40; SC1636 (10 November 2017).
    
12. The fundamental is that there is no arguable cause demonstrated to the required balance so as to tilt that leave is made out in the plaintiff’s favour. The first defendants letter annexure “I” and “K” to the affidavit of Peter Wanis are purely administrative and do not entail breaches of section 59 of the Constitution as alleged. Justice must be done and seen to be done within the association in the appointment of an undisputed public officer. And if viewed within the terms of the Wednesbury sense it cannot be sustained as being unfair and unreasonable, so that it sustains for leave to be granted. Because it is a matter within the discretion of the plaintiffs amongst themselves to settle, as to who represents the association as the Public Official by the conduct of a meeting from which, endorsement is made of a Public officer take that to notice upon the office of the first defendant who will correct accordingly.
    
13. The facts and circumstances do not entail that leave be granted: Asakusa v Kumbakor, Minister for Housing [2008] PGNC 39; N3303 (10 April 2008). As it is this is not a case were it would be allowed, because judicial review is a restrictive domain and busy bodies and the like have no part in it, nor are they allowed to venture, “Judicial Review is restrictive and for very good reasons because, “Grant of leave for review of an executive decision or act is a prerequisite for the hearing of a claim for judicial review...The leave application itself is a guided process in which the question of grant or refusal is discretionary. This stems from the fact that the judicial review application is a restrictive process. The rationale as ...is simple: Judicial Review is not an open forum for busy bodies and other persons with misguided or trivial complaints over administrative errors to air their grievances” at para 9,”Schram v Papua New Guinea University of Technology [2012] PGNC 245; N4992 (6 December 2012.
    
14. The aggregate is that leave for judicial review has not been discharged by the applicant on balance required and is refused with costs.
    
15. The formal orders of the Court are:
    
    • (i) Application for Leave is not made out.
    • (ii) Application is dismissed forthwith.
    • (iii) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Kandawalyn Lawyers: Lawyer for the Plaintiff

Jerry Kama Lawyers: Lawyer for Second Plaintiff

Office of the Solicitor General: Lawyer for the Defendants