Koito v Arua [2025] PGNC 378; N11518 (10 October 2025)

N11518

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 67 OF 2025

BETWEEN:
GAMO KOITO
Plaintiff

AND:
JOHN ARUA
First Defendant

AND:
JOHN TIGAVU
Second Defendant

AND:
EDDIE ITARI
Third Defendant

AND:
MOSES GILAI
Fourth Defendant

AND:
SHARON HAIHAVU
LEGAL OFFICER
MINERAL RESOURCES AUTHORITY
Fifth Defendant

AND:
MINERAL RESOURCES AUTHORITY
Sixth Defendant

MADANG: NAROKOBI J
16 AUGUST, 10 OCTOBER 2025

SUFFICIENT INTEREST – whether proceedings are an abuse of process for lack of sufficient interest.

PROPER MODE OF PROCEEDINGS – whether proceedings are an abuse of process for wrong mode of proceedings.

Facts
The Plaintiff, Gamo Koito, challenges the election of the First and Second Defendant as the Chairman and Deputy Chairman (John Arua and John Tigavu), of a landowner association of the Ramu Nickel mine in Madang Province, Kurumbukari Landowners Association (KLA). Mineral Resource Authority, the Sixth Defendant, provides oversight of these associations, including facilitating election of office-bearers. He says that the First and Second Defendant are ineligible to hold office, and the Mineral Resource Authority should have disqualified them from contesting. He seeks orders to invalidate their election and have Mineral Resource Authority facilitate fresh elections. This is a ruling on the Defendants’ application to dismiss the proceedings for abuse of process.

Held:

(1) The Plaintiff was not a contestant in the KLA office-bearer’s elections and only comes to court after an earlier challenge by a contestant was dismissed. In the circumstances he does not have a genuine interest in the subject matter of the proceeding such that it can be said he has a sufficient interest capable of sustaining the proceeding.

(2) The proceedings challenge the validity of a decision of a public body and then to compel that body to perform its statutory functions. The character of the orders sought are prerogative writs of a certiorari and a mandamus. Applying Telikom PNG Limited v Independent Consumer and Competition Commission (2008) SC906, the proceeding should have commenced as a judicial review under Order 16 Rule 3 of the National Court Rules.

(3) For these reasons the proceedings are an abuse of process and should be dismissed with costs.

Cases cited
Amet v Yama (2010) SC1064
Kenn Norae Mondiai v Wawoi Guavi Timbers Co. Ltd (2007) SC886
Philip Takori and Others v Simon Yagari and Others (2008) SC905
SCR NO. 4 of 1980; Re: Petition of Michael T Somare [1981] PNGLR 265
Steamships Trading Ltd v Garamut Enterprises Ltd (2000) N1959
Telikom PNG Limited v Independent Consumer and Competition Commission (2008) SC906
O’Reily v Mackman [1983] UKHL 1; [1983] 2 AC 237

Counsel
Mr J Kolkia, for the plaintiff
Mr B Wak, for the first, second, third and fourth defendants
Mr E Korua, for the fifth and sixth defendants

RULING

1. NAROKOBI J: This is a ruling on a contested application by Notice of Motion, filed by the First, Second, Third and Fourth Defendants on 27 May 2025 pursuant to Order 12 Rule 40(1)(c) of the National Court Rules seeking to dismiss the entire proceedings for being an abuse of process. The Fifth and Sixth Defendants have filed similar application and supported the submissions of their co-defendants.
   
2. The Plaintiff is an executive committee member of a landowner association in the Ramu Nickel mining development – Kurumbukari Landowners Association (KLA). The executive committee members represent each of the clans in a particular community in the mining project area. The executive committee members elect the office-bearers of the association. There are several associations representing the landowners’ interests. Oversight of the governance of these associations are done by the Mineral Resource Authority under the Mineral Resource Authority Act 2018. Issues the subject of this matter relate to the elections conducted by Electoral Commission of Papua New Guinea and facilitated by the Mineral Resource Authority.
   
3. The Plaintiff’s case, filed on 10 April 2025 seeks orders to declare the elections of the First and Second Defendants as Chairman and Deputy Chairman of KLA null and void and further seek an order for a by-election to be held for the two (2) positions, to be facilitated by Mineral Resources Authority, the Sixth Defendant. The orders sought in the Originating Summons are:
   

1. A declaration pursuant to Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution that the First Defendant does not qualify under clause11.1(c) and 11.2 of the Constitution of the Krumbukari Landowners Association Inc, to contest for the position of Chairman of the Kurumbukari Landowners Association Inc, hence his election as the Chairman on the 17th April 2024 is therefore null and void.

2. A declaration pursuant to Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution that the Second Defendant does not qualify under Clause11.2 of the Constitution of the Krumbukari Landowners Association Inc, to contest for the position of Deputy Chairman of the Krumbukari Landowners Association Inc hence his election as the Deputy Chairman on the 17th April 2024 is therefore null and void.

3. A order pursuant to Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution that the Sixth Defendant and its officers shall facilitate a fresh election for the position of the Chairman and Deputy Chairman of Krumbukari Landowners Association Inc forthwith.

4. On 11 April 2025, the National Court issued ex-parte orders restraining the First, Second, Third and Fourth Defendants from exercising their powers as office bearers and accessing the funds belonging to KLA. These orders were discharged on 16 August 2025 after I heard all parties and formed the view that there was no arguable case for the interim orders to remain, and the balance of convenience was against the continuation of the injunction.
   
5. The elections the subject of the dispute took place on 17 April 2024, at the Coast Watchers Hotel in Madang town. The First Defendant was elected Chairman, the Second Defendant elected Deputy Chairman, and Third and Fourth Defendant elected as Treasurer and Secretary of KLA.
   
6. The gist of the Plaintiff’s claim is that the First and Second Defendant did not qualify to stand for elections as Chairman and Deputy Chairman and their election should be declared null and void and a by-election held for the Association for these two (2) positions. Clause 11.2 of the KLA Constitution provides, “office Bearers must not hold any public office or full-time employment with any other organisation.” The claim is that the First and Second Defendants already hold public office and are ineligible to stand for elections.
   
7. The Applicants’ grounds for dismissal arguing abuse of process can be summarised as follows:
   
   • The Plaintiff lacks standing to file proceedings as he was not a contestant for the election.
   • The Plaintiff initiated wrong mode of proceedings. The proper proceedings should have been a judicial review, seeking orders in the nature of certiorari, to quash the election results.
   • The entity that conducted the elections, the Electoral Commission of Papua New Guinea were not named as parties to the proceedings.
   • The orders sought would be contrary to the Constitution of KLA.
   • The Plaintiff did not give s notice under s 5 of the Claims By and Against the State Act 1996.
     
8. The law relating to summary dismissal for abuse of process is well settled in this jurisdiction, essentially positing that proceedings may be dismissed by the court at any stage if it is an abuse of process (Philip Takori and Others v Simon Yagari and Others (2008) SC905; Amet v Yama (2010) SC1064). Incompetent proceeding is a usual ground for abuse of process. The court is conferred an inherent power to control its proceedings.
   
9. The Plaintiff resist the application by arguing that the First and Second Defendants clearly are not eligible to contest and he should be allowed to challenge this in court. He has an interest to see that the Constitution of KLA is complied with.
   
10. I start with the first ground raised by the Applicants. They argue that the Plaintiff lacks standing because he was not a candidate for the elections. Only persons that contest the elections have standing or sufficient interest.
    
11. The question of standing or sufficient interest has received much attention in judicial review proceedings initiated under Order 16 Rule 3 of the National Court Rules. From the case authorities considered, it is usually determined by considering how the Plaintiff’s rights and interests are affected by the reliefs sought. The courts in Papua New Guinea have taken a wide approach as the case of SCR NO. 4 of 1980; Re: Petition of Michael T Somare [1981] PNGLR 265 and Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959 suggest. The approach I take is from Kenn Norae Mondiai v. Wawoi Guavi Timbers Co. Ltd (2007) SC886, at [79]:
    

79. In this country at our current stage of economic development we do not consider that it is appropriate to narrow the opportunities for interest groups to come to the court to point out what they consider is going wrong, that is unlawful conduct, in government departments and statutory authorities, provided what is complained of is the breach of a public duty by a public authority. There are very few individuals in the groups directly affected by legal actions, particularly concerning customary land, who have the resources to be able to come to the higher courts to get illegal conduct stopped and wrongs righted. In the future we do not rule out the possibility that if the allegations of illegality are sufficiently grave and the evidence of an arguable case sufficiently cogent at the leave stage, even a citizen with no other interests than to see the law upheld may have sufficient interest to bring the case.

12. Lack of standing on its own, will not be enough to knock out the proceeding. The Plaintiff states that his interest is to ensure compliance with the law governing the operations of KLA. He was a committee member that elected the office-bearers. In my view he is entitled to question the process being part of the electing body. But the question of whether he has sufficient interest must also be considered in the context of the events leading up to the filing of the proceeding.
    
13. Prior to the Plaintiff filing the proceeding, one of the actual candidates for the Chairmanship of KLA filed proceedings to challenge the election of the First and Second Defendants to the positions of Chairman and Deputy Chairman respectively. This was Moses Kumura, in proceedings styled as WS No 55 of 2024. On 18 February 2025, this court, per Deputy Chief Justice Kandakasi dismissed the proceedings for failing to comply with orders of the court.
    
14. It is in evidence that after that proceeding was dismissed, Moses Kumara filed an affidavit to support the Plaintiff in this case. In his affidavit filed 10 July 2025 he has asked to be joined as a party. He says he was disqualified from holding office, but it has come to light that the First and Second Defendants do not qualify under Clause 11.2 of the KLA Constitution to hold office, He wants to challenge their election by joining this proceeding. Interestingly, he does not state what public office the First and Second Defendants hold that would make them potentially ineligible to be office bearers in KLA. No details have been provided of the proceeding he filed. Information on the dismissal of his case comes from the affidavit filed by the Plaintiff, enclosing a copy of the Deputy Chief Justice’s dismissal orders. The Plaintiff’s affidavit also identifies the “public office,” he claims the First and Second Defendant occupy that he alleges disqualifies them from contesting KLA office-bearers elections.
    
15. On 17 April 2025, two months after the dismissal of the proceedings filed by Moses Kumura, the Plaintiff filed this proceeding. From the affidavit material filed there is some concern about whether the Plaintiff freely consented to initiating this proceeding. I do not address this issue.
    
16. In my view, the present proceedings are a second attempt to challenge the election of the First and Second Defendants, after the initial challenge by Moses Kumura failed.
    
17. The fact that the Plaintiff filed the proceeding soon after the dismissal of WS No 55 of 2024, and that Moses Kumura seeks to be joined as a party to the present proceedings, suggest to me that the Plaintiff does not have a bona fide interest to ensuring that the Constitution of KLA is complied with. The close association between Moses Kumura and the Plaintiff and the time within which these proceeding was filed has led me to this view.
    
18. KLA is an entity representing the interests of landowners. It is a quasi-public body, with a limited budget focusing on advancing landowner interest. Its governance is supervised by a public body, Mineral Resource Authority. Public policy demands that such entities should not be engaged in continuous litigation.
    
19. The Plaintiff was not a contestant in the KLA office-bearer’s elections and only comes to court after an earlier challenge by a contestant was dismissed. In the circumstances he does not have a genuine interest in the subject matter of the proceeding such that it can be said he has a sufficient interest capable of sustaining the proceeding.
    
20. For these reasons, I have reached the conclusion that the proceeding should be dismissed as an abuse of process for lack of sufficient interest.
    
21. Even if I was wrong on this issue, the Plaintiff has not invoked the proper mode of proceedings. The Sixth Defendant is a public body created by statute. It exercised its powers under the Mineral Resource Authority Act 2018 to enforce the KLA Constitution. That decision is being challenged.
    
22. Mr Wak and Mr Korua submits forcefully relying on Telikom PNG Limited v Independent Consumer and Competition Commission (2008) SC906 that where orders sought are in the nature of prerogative writs, the proceedings should commence by judicial review under Order 16 Rule 3(2) of the National Court Rules. The rationale for this approach was explained by Christopher Karaiye in his insightful work, Administrative Law and Judicial Review in Papua New Guinea wherein he cited at pg 36 the English case of O’Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237 where Lord Diplock stated [p285]:
    

[It would...] as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of ordinary authorities....

23. The exclusive use of judicial review proceedings as the mode of proceedings for challenging decisions of public bodies is because public authorities are considered as acting in the public interest, and their decision should not be readily subject to challenge through ordinary litigation proceedings.
    
24. What the Plaintiff attempts to do here is to quash the election and have the Sixth Defendant, a public body exercising public functions, compelled to conduct fresh elections, with the exclusion of the First and Second Defendant. The orders sought are really in the nature of certiorari and a mandamus. These are remedies classified as prerogative writs that can only be obtained from a judicial review complying with the requirements of Order 16 Rule 3(2) of the National Court Rules. This is clear from Telikom PNG Limited v Independent Consumer and Competition Commission.
    
25. The present proceeding is not a judicial review. It should have been filed through that mode of proceeding. It is therefore an abuse of process, and should be dismissed, for this second reason, too.
    
26. Reaching this conclusion, it is not necessary to consider the other grounds for dismissal for abuse of process.
    
27. The proceeding should be dismissed in its entirety for being an abuse of process for lack of standing and use of the wrong mode of proceeding.
    
28. On the issue of costs, the usual outcome is that costs follow the event. But after reading the affidavit materials, it is apparent that the Plaintiff may not have freely consented to initiating this proceeding. But I make no finding. However, out of an abundance of caution, I order that the costs awarded against the Plaintiff will be limited to K15,000.00. This covers the reserved costs of 6 June 2025.
    
29. The formal orders of the court are as follows:
    
    1. The proceeding is dismissed in its entirety for being an abuse of process.
    2. The Plaintiff shall pay the Defendants’ costs in the fixed sum of K15,000.00 to be paid equally to the Defendants.
    3. The matter is considered determined and the file is closed.
    4. Time is abridged.
       
30. Ruling and orders accordingly.
    

Lawyers for the plaintiff: Johnny Kolkia Lawyers
Lawyers for the first, second, third and fourth defendants: Bradley and Company Lawyers
In house Counsel of Mineral Resource Authority: Lawyers for the Fifth and Sixth Defendants.