Winis v Kasima [2025] PGNC 255; N11369 (11 August 2025)

N11369

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 337 OF 2023

BETWEEN:
JACOB WINIS AS FORMER CHAIRMAN OF MAIGARI INLAND PIPELINE LANDOWNERS ASSOCIATION INC.
Plaintiff

AND:
YAUNIA KASIMA, BARNABAS KESA, MATHEW ABAURA AND MIKONI WEIPA AS EXECUTIVE MEMBERS OF MAIGARI INLAND PIPELINE LANDOWNERS ASSOCIATION INC.
First Defendants

AND:
MAIGARI INLAND PIPELINE LANDOWNERS ASSOCIATION INC.
Second Defendant

MADANG: NAROKOBI J
7 JULY, 11 JULY 2025

ASSOCIATION INCORPORATION ACT Ch 142– Interpretation of an Association’s Constitution- Whether relief and injunction sought should be granted on the basis of non-compliance with the Association’s Constitution.

Facts

The parties are landowners in the mining area of the Ramu Nickel and Cobalt mine in the Madang province. Several associations have been incorporated to represent the interests of the landowners. Maigari Inland Pipeline Landowners Association Inc, is one such Association. The plaintiff alleges that he was not lawfully ousted from office as the chairman of the Association. He seeks declarations that he be reinstated. The main issue is whether the election ousting him was conducted in compliance with the Constitution of the Association.

Held:

(1) On a proper construction of the Association’s Constitution, and on the evidence tendered, the plaintiff did not demonstrate a breach of that Constitution, and all the reliefs sought should be refused, with costs.

Cases cited

No cases have been cited.

Counsel

Mr D Wa’au for the plaintiff
Mr A Daugl for the defendants

DECISION

1. NAROKOBI J: The parties are landowners in the mining area of the Ramu Nickel and Cobalt mine, in the Madang province. Several associations have been incorporated in the mine area to represent the interests of the landowners. Maigari Inland Pipeline Landowners Association Inc (Association) is one such entity.
   
2. The plaintiffs filed proceedings seeking several orders against the defendants. The gist of the proceedings is to have the first defendants’ election as executive members of the Association nullified. Consequently, the plaintiffs seek for themselves to be declared as the legitimate executive committee members of the Association, the second defendant.
   
3. I had initially begun by referring to “plaintiffs.” For reasons I will come to explain, there is now only a “plaintiff” and no “plaintiffs.” The other named plaintiffs are no longer interested in supporting Jacob Winis.
   
4. The named plaintiffs in the original originating summons were Jacob Winis, John Koti, Foi Pukap, Jonah Ulap and Noel Aron. Jacob Winis now being the sole plaintiff, has gone on to file several affidavits to support his alleged cause of action. No evidence has come from any of the other persons named as plaintiffs to prove the claim. In fact, Jonah Ulap, John Koti, Noel Aron and Foi Pukap have tendered affidavits denying Jacob Winis’ claim.
   
5. The second defendant is an association incorporated under the Associations Incorporation Act, Ch 142. Section 16 of the Act provides for the rules of an association. Where an association adopts a Constitution, it must provide for the matters in s 16 of the Act. Here, the second defendant had adopted a Constitution, and I take it that this Constitution complies with s 16 of the Act. The first defendant has raised some issues about its validity. However, in submissions, they relied on clauses of the Constitution, that are similar to that annexed to the affidavit of Jacob Winis, filed on 4 October 2024. In the absence of contrary evidence, I find that the Constitution is sanctioned by the Act and the members, executive members, and office bearers of the second defendant are bound by it. The legitimacy of anything they do or omit to do, depends on compliance with this Constitution.
   
6. The plaintiff has also obtained interim orders against the defendants on 12 April 2024 and appears to continue to occupy the office of the second defendant as an office bearer. There were some issues surrounding the use of a vehicle, but I understand this has been resolved. All this, however, must be confirmed.
   
7. The basic issue I determine is whether the defendants have complied with the Constitution of the Association. The relevant provisions of the Association’s Constitution under consideration are clauses 5.1, 5.2, 5.3 and clause 13. Based on these provisions the plaintiff advances the following arguments:
   
   • The elections were conducted prematurely contrary to clause 13.5 which provide for a five-year term of executive members. He was only three years into his term when the elections were conducted. He says that his term is to be calculated from a court order he obtained in OS 190 of 2020.
   • The Constitution of the Association does not allow Mathew Abaura and Mikoni Weipa to contest as they come from areas outside the what’s called the LTC Declared Zones. Their involvement has tainted the electoral process, affecting his chances.
   • The election should have been run at the Usino LLG chambers pursuant to clause 13.3 of the Constitution of the Association.
     
8. The Defendants oppose the grant of the orders. They say that:
   
   • The elections were lawfully conducted by the Electoral Commission of Papua New Guinea and Mineral Resource Authority. The plaintiff only questions the legitimacy of his ousting which must yield to institutional legitimacy and administrative regularity.
   • There is no basis under the Association’s Constitution for the claim, and furthermore, the Constitution relied by the plaintiff is not authorised by the Investment Promotion Authority.
   • Peer Associations in the mine areas have not questioned similar electoral exercises.
   • Because the plaintiff seeks declaratory and injunctive relief, their grant is discretionary, and to grant the relief would not be in the interests of justice.
     
9. After hearing oral submissions, considering the evidence and reading the submissions, including the Association’s Constitution, I am not persuaded that I should grant the relief sought by the plaintiff. The relief are declaratory and injunctive in nature and are discretionary. Even if a claim may have a semblance of legitimacy, the question of whether it will serve the interests of justice must be borne in mind. I have therefore come to the considered view that the proceedings should be dismissed. I have reached this conclusion for several reasons.
   
10. The first and main reason relates to the definition of the term “executive committee.” Clause 2 of the Association’s Constitution defines an executive committee as the office bearers and the eight committee members. How does a person become a member of the executive committee? Under Clause 13(1)(b), each of the four (4) main zones of Usino, Igiruwe, Ono and Naru shall appoint three (3) of its members to be members of the Executive Committee. Then after they are elected, under clause 10.6, they elect their office bearers. The office bearers are defined as “Chairman, Deputy Chairman, Treasurer and the Secretary of the Association (Clause 2). In the orders being sought, the plaintiff challenges the first defendants’ election as “executive committee members.” He does not question their status as “office bearers.” With respect this is a misunderstanding of the Constitution of the Association. The plaintiff has no standing to challenge the first defendants’ status as executive members. This is a function of their respective zones. No relief is claimed against the first defendants as “office bearers.” For this reason alone, the proceedings should be dismissed.
    
11. The second reason for dismissal of the proceeding is this. This is a proceeding which requires the backing of all former office bearers to support the cause. If I were to grant the relief sought, what would become of John Koti, Foi Pukap, Jonah Ulap and Noel Aron? They have accepted the election outcome and moved on. You cannot have a chairman without his or her office bearers. I agree with the defendants that the plaintiff, Jacob Winis must “yield to institutional legitimacy and administrative regularity.”
    
12. The third reason is related to the second reason. The plaintiff asks the court to recognise him as the legitimate Chairman. He does not ask the court for a re-election. This would be the only way he could maintain proceedings in the absence of the former office bearers. This should have been an alternative relief sought. And this will also require naming the Electoral Commission of Papua New Guinea and the Mineral Resource Authority as defendants as they conducted the elections. These authorities, having conducted the election would be the appropriate entities to answer for any perceived irregularities in the election process.
    
13. The fourth reason negates the plaintiff’s contention that his term was still current. The first point about this is that in any organisation, including the national Parliament of Papua New Guinea, elections are held on a fixed cycle. Taking the example of an election petition challenging the outcome of a national general election, where a petitioner succeeds, the five-year cycle is not disturbed. From whatever period he or she occupies office by virtue of a court order, his or her tenure will run consistent with all other electorates in the country, even if he or she was to hold office for a day. Unless specific legislative provision provides otherwise, this is the standard practice. The second point is that the plaintiff participated in the election and did not object to it. Time and expense have been spent to run the election. He has only cried foul after the election went against him.
    
14. The fifth reason negates the plaintiff’s contention that Mathew Abaura and Mikoni Weipa are not from the LTC declared zones. This is a matter that should have been raised at the time of the elections, too. And it can only be raised by the clans from the zone that Mathew Abaura and Mikoni Weipa are said to represent. Each of the four zones, that is Usino, Igruwe, Ono and Naru are allowed three representatives each (Clause 13, Association’s Constitution). They were appointed by their zones as their representatives to be in the executive committee of the Association. There is no contrary evidence from the respective zones Mathew Abaura and Mikoni Weipa represent. Jacob Winis therefore has no standing to raise this objection. To do so, would be to usurp the power of the zone that appointed them to the executive committee of the Association.
    
15. The final reason relates to the venue of the election. Again, this submission cannot stand because the venue of the election can be held elsewhere under clause 13.3 of the Constitution, if the full committee so resolves. The fact that the plaintiff participated in the election, and none of the executive committee raise this as an issue, including John Koti, Foi Pukap, Jonah Ulap and Noel Aron goes to show that there was an agreement that the election could be held elsewhere.
    
16. For all these reasons, I will order that the proceedings be dismissed, and that the plaintiff, Jacob Winis pay the defendants’ costs, to be taxed if not agreed. Additionally, all interim orders issued in this proceeding on 12 April 2024 are discharged from the date of this order.
    
17. The formal orders of the court are as follows:
    
    1. The entire proceedings is dismissed.
    2. All interim orders issued in this proceeding are discharged as of today, principally the order of 12 April 2024.
    3. The plaintiff, Jacob Winis shall pay the defendants’ costs, to be taxed, if not agreed.
    4. Matter is considered determined, and the file is closed.
    5. Time for settlement of the orders is abridged.
       
18. Judgment and orders accordingly.
    

Lawyers for the plaintiff: D.F.W Lawyers
Lawyers for the defendants: Darnold Lawyers