Yumi Yet Shop Ltd v Thatchenko [2023] PGNC 119; N10238 (20 April 2023)

N10238

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 06 OF 2021

YUMI YET SHOP LIMITED
Plaintiff

V

JUSTIN THATCHENKO MINISTER FOR LANDS & PHYSICAL PLANNING
First Defendant

AND
BENJAMIN SAMSON SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND
DR ERIC KWA ATTORNEY GENERAL
Third Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

AND
MOALE GABUNA PEACE & GOOD ORDER COMMUNITY ASSOCIATION INC. (5-4992)
Fifth Defendant

Waigani: Miviri J
2023: 20^th April

PRACTICE & PROCEDURE – Originating Summons – Notice of Motion for Judicial Review – Interlocutory Application – Legal Representation Fifth Defendant – Association Incorporated – Authority to Engage Instruct Lawyers By – IPA Record Public Officer Appointed – Proper Association Officer Instructing Counsel – Dispute Factions Association – IPA Independent Record Keepers Evidence – Prerogative writs pleaded granted – Cost follow event.

Cases cited:

Pololi v Wyborn [2013] PGNC 144; N5395
Counsel:

F. So, for Plaintiff
J. Bakaman, for State Defendants
J. Siki, Jerry Siki Lawyers
J. Simbala, Vijay & Co Lawyers

RULING

20^th April, 2023

1. MIVIRI, J: This is the ruling on an interlocutory application as to which lawyer is instructed by the fifth Defendant as counsel on record defending its cause of action.
   
2. Both Joppo Simbala of Vijay & Co Lawyers and Jerry Siki of Siki Lawyers contend that they each and severely represent the fifth defendant in these proceedings.
   
3. Both have argued with supporting documents that each by that fact represent the fifth defendant as the Public Officer from their individual documents filed is the person duly elected as Public Official and therefore by that authority were instructed properly to take carriage for the fifth defendant before the court. It is clear by this fact that all is not well within the Association. It is therefore important at the outset to acknowledge that independent evidence together with the records of the Court will confirm as to which Counsel is counsel representing the fifth defendant before this Court.
   
4. In this regard on the 05^th April 2022 at 1.30pm in appearance before the Court, Tamade AJ presiding was interested party represented by Mr. Simbala. There the Court had before it a notice of motion filed of the 1^st April 2022 for joinder of an interested party is adjourned for hearing to the 08^th April 2023 at 1.30pm. And time was abridged to these orders to take effect forthwith.
   
5. On the 14^th December 2021 at 10.30am before the Court presided by Acting Justice Tamade, the substantive hearing of this matter set on that day was vacated. And the joinder application filed by Harvey Nii Lawyers on the 18^th November 2021 was adjourned to the 17^th February 2022 at 9.30am. In appearance was Mr Simbala and Mr Bakaman for the State.
   
6. On the 08^th April 2022 before Acting Justice Tamade was Mr. Simbala for Interested party. And Mr So was for the Plaintiff and Mr Bakaman was for the State defendants. The Court there granted the joinder application to Moale Gabuna Peace & Good Order Community Association Incorporated to joined as a party, as fifth defendant to the proceedings. Plaintiff was ordered to bear the costs of the joinder application. And parties were ordered to file further affidavits and the like that they intended to rely on by the 29^th April 2022. Written submissions were to be filed and served by 06^th May 2022. And the substantive hearing was set for the 16^th May 2022 at 1.30pm. Time was abridged to the date for these orders to take effect forthwith.
   
7. Further affidavit relied of Tony Kalem of the 14^th April 2023 deposed of the 13^th April 2023 has a newspaper the National News paper of Wednesday 29^th March 2023 which has the notice by the Investment Promotion Authority Companies Act 1997 as amended under section 395 notice to rectify records. It reads; “The Registrar of companies gives notice pursuant to section 395A (1) of the Companies Act 1997 (as amended) that She will rectify the register in relation to) Moale Gabuna Peace & Good Order Community Association In 5-4992). Accordingly, the Registrar of Companies will rectify the register as there is reasonable cause to believe that the changes made after 08^th February 2023 were unauthorized and illegal. Any person who objects to the rectification shall do so in writing to the Registrar of Companies within 30 days from the date of publication. Dated this 16^th day of March 2023 signed Harriet Kokiva Acting Registrar of Companies” It is signed sealed with the seal of that office.
   
8. Yet a further affidavit relied of Tony Kalam of the 1^st December 2021 sets annexure “A” Statement of Chief Sergeant Felix Rayabrum, Document Examiner of the National Forensic Science Centre Gordons Policeman of the Royal Papua New Guinea Constabulary who confirms that, “ there are strong indications to suggest that the Company name and logo together with the signatures appear illegible or faded on most writings on top and bottom page as such creating suspicions of cut and paste or scan and transferred method.”
   
9. Cecilia Tenge has sworn 13^th April 2023 and filed an affidavit of the 14^th April 2023. She has annexure “A” Certificate of an Association Moale Gabuna Peace and Good Order Community Inc 5-4992 contrary to the publication in the national set out above. This is clear following from that notice set out above that this is not to be held at face value. And that is more so with the evidence set out by the police document examiner above. Further the excerpt Annexure “C” Association extract does not confirm that it is now putting to rest what is raised by National Newspaper of Wednesday 29^th March 2023 which has the notice by the Investment Promotion Authority Companies Act 1997 as amended under section 395 notice to rectify records particulars set out above. It means in my view the excerpts of annexures “F” of that affidavit remain inconclusive that Cecilia Tenge is the public Office holder Moale Gabuna Peace & Good Order Community Inc 5-4992.
   
10. The records of appearance in this matter on the record of the Court show that on the 03^rd June 2022 Mr. Simbala appeared for the 5^th Defendant before this Court presided by Acting Justice Tamade. On the 08^thAugust 2022 Mr Simbala appeared for the fifth defendant again before Acting Justice Tamade. And that has been the case until the 20^th March 2023 when Mr Siki made appearance.
    
11. In my view it is clear Mr Simbala instigated on instructions the application to joinder of the fifth defendant. He proceeded up to the present. It begs his client chose him to get them into the cause of action why would they abandon him after he successfully get them into the action. There is clearly in fighting evidenced above in the association. The initial officer who was designated public officer then Tony Kalem had authority to instruct and to bring the fifth defendant with the engagement of Mr Simbala into this cause of action. They have a right to be heard as it is the appeal that they lodged against the decision of this Court that has got it back here. It is proper for that Lawyer and Client relationship to continue to see where the Justice of the matter is.
    
12. This is not the forum to air disputes within that Association as to membership and the like. This is a judicial review proceeding that challenges the decision of the State parties and the appeal that has turned around the decision to this action now in court by the fifth defendants. And time is running to see out what the plaintiff contends, and this interlocutory will not avoid that. Here the facts are clear from the record of the Court that Mr Simbala of the firm Vijay & Co Lawyers and not Jerry Siki of Siki Lawyers are the lawyers representing the fifth defendant in these proceedings. They will remain as lawyers on record defending the fifth defendant who they applied and secured as fifth defendants into the action. They will continue to represent to air their grievances and not Siki Lawyers. Mr Jerry Siki will not be heard any further on this matter and does not for intent and purposes represent the fifth defendant in these proceedings with his firm Jerry Siki Lawyers.
    
13. This is a matter that has drawn on judicial time unnecessarily given all set out above and the costs will follow given against the firm initiating and counsel who procrastinated given. This is the firm that has improperly urged a matter that is clearly prolonged this matter unnecessarily given all set out above. It must bear the costs for so doing and which this court has done and seen out in Pololi v Wyborn [2013] PGNC 144; N5395 (30 July 2013). In fighting within the association that should have come to stale this judicial review proceedings. Cost will therefore follow against Jerry Siki of Siki Lawyers forthwith.
    
14. The formal orders of the Court are:
    
    • (i) Mr Simbala of Counsel of the Firm Vijay & Co Lawyers are lawyers on record for the fifth Defendant.
      
    • (ii) Mr Jerry Siki of the Firm Jerry Siki Lawyers are not the lawyers on record representing the fifth defendants and will cease forthwith.
      
    • (iii) Costs of the application will follow the event against Jerry Siki of the firm Jerry Siki Lawyers forthwith.
      

Orders Accordingly.
__________________________________________________________________
Ketan Lawyers : Lawyer for the Plaintiff
Office of the Solicitor Generals: Lawyer for State Defendants
Vijay & Co Lawyers : Lawyers for the Fifth Defendants