National Superannuation Fund Ltd v Yawenaik Holdings Ltd [2025] PGNC 422; N11561 (26 September 2025)

N11561

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 789 OF 2015 consolidated with OS (JR) 682 of 2013

BETWEEN:
NATIONAL SUPERANNUATION FUND LIMITED
Plaintiff

AND:
YAWENAIK HOLDINGS LIMITED also known as YAWANAIK HOLDINGS LIMITED
First Defendant

AND:
CHRIS MANDA in his capacity as SURVEYOR GENERAL
Second Defendant

AND:
ROMILLY KILA PAT as a DELEGATE OF THE MINISTER FOR LANDS AND PHYSICAL PLANNING
Third Defendant

AND:
HON BENNY ALLAN in his capacity as MINISTER FOR LANDS AND PHYSICAL PLANNING
Fourth Defendant

AND:
HON POWES PARKOP in his capacity as CHAIRMAN and other members of THE NATIONAL CAPITAL DISTRICT PHYSICAL PLANNING BOARD
Fifth Defendant

AND:
BENJAMIN SAMSON in his capacity as REGISTRAR OF TITLES
Sixth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

AND:
SANASNO GROUP LIMITED
Eighth Defendant

AND:
KEITH LAHUI, CHAIRMAN AND OTHER MEMBERS OF THE PNG LAND BOARD
Ninth Defendant

AND:
DELTA CORPORATION LIMITED
Tenth Defendant

AND:
ALLAN BANIYAMAI
Eleventh Defendant

AND:
BARRICK SOMI TEMERI
Twelfth Defendant

WAIGANI: PURDON-SULLY J
22 AUGUST, 26 SEPTEMBER 2025

JUDICIAL REVIEW – COMPETENCY – application for summary dismissal –– want of board resolution – standing – failure to name correct decision maker – proceedings cannot succeed - lack of utility – proceedings dismissed as incompetent and/or an abuse of process

Cases cited
Agiru v The Electoral Commission [2002] SC687
Alex Timothy v. Hon Francis Marus (2014) SC1403
Andrew Nagari v. Rural Development Bank; Rural Development Bank v. Andrew Nagari [2007] N3295
Application by Edward Mike Jondi as General Secretary of the PNC Party [2016] SC1561
Application by Nilkare, Review Pursuant to s 154(4) of the Constitution [1998] PNGLR 472
Bearasi v Konekaru Holdings Ltd [2010] N4189
Bluewater International Limited v Mamu [2019] SC1798
Dads Investment Corporation Ltd v Samson [2023] PGSC 134; SC2485
Era Dorina Limited v. Eki Investments Limited (2006) N3176
Foss v Harbottle [1843] EngR 478; [1843] 67 ER 189
Frederick Martins Punangi v Sinai Brown as Minister for Public Service, Sir Michael Somare as Chairman of the National Executive Council and the State [2004] N2661
Gelu v Sheehan [2013] PGNC 235; N5498
Huon Logistic Ltd v Kekam Limited [2024] PGNC342; N11026
Karl Paul v Aruai Kispe [2001] N2085
Kawyok v Singomat [2017] N7097
Keka v Yafaet [2018] SC1673
Kiap v Kasper [2023] SC747
Malewo v Faulkner [2009] SC960
Mali v The State [2002] SC690
Mision Asiki v Manasupe Zurenouc & Ors [2005] SC797
Morauta v Pala (2016) SC1529
Odata Ltd v Ambusa Copra Oil Mill Ltd (2001) N2106
Ombudsman v Yama (2004) SC747
Opotio v Bare [2023] PGNC; N10400
PNG Forest Authority v Securimax Security Pty Ltd [2003] SC717
Polem Enterprise Ltd v Attorney General [2008] PGSC9; SC911
Radio Taxis Ltd v Wano [2018] PGSC 98; SC1768
Ramu Nico Management (MCC) Ltd v Ane [2025] PGNC 22; N11150
Salomon v Salomon & Co Ltd [1897] AC 22
Somare v Manek [2011] SC1118
Temai v Kool [2024] PGNC 21; N10667
The National Executive Council, the Attorney General and Luke Lucas v Public Employees Association of Papua New Guinea [1993] PNGLR 264
Wartoto v The State [2015] PGSC 1; SC1411
Wereh v National Executive Council [2024] PGNC 392; N11064

Counsel
Mr G Geroro with Mr J Liskia for the plaintiff
Mr P Mawa with Mr E Wembri for the tenth defendant

1. PURDON-SULLY J: This is the Court’s ruling on the Tenth Defendant’s Notice of Motion filed on the 23 June 2025 (the application) seeking the dismissal of the proceeding described as National Superannuation Fund Limited v Delta Corporation Limited & 5 Others (OS (JR) No 682 of 2013) for one or more of the following grounds for:
   1. being incompetent and/or otherwise an abuse of court process for reason that the Plaintiff seeks to review a final decision of the Head of State under Section 62 of the Land Act 1996, and the decision maker, the Head of State, is not named through his nominal defendant; and or
   2. being incompetent and/or otherwise an abuse of court process for want of board resolution from the Plaintiff company specifically authorizing the filing and maintaining of this proceeding against the Defendants including the Tenth Defendant, Delta Corporation Limited in respect of the land subject of dispute in proceeding OS (JR) No 682 of 2013; and or
   3. being incompetent and/or otherwise an abuse of court process for reason that events have overtaken the utility of proceedings in that the land subject of review was sub-divided, and sold to third parties consistent with the Survey Act (as amended) and the Land Registration Act; and or
   4. the Plaintiff's failure to comply with court directional orders issued consistent with Order 16 Rules 6 and 7 of the NCR to set the matter or the judicial review application down for hearing within a reasonable time.
   5. alternatively, the pleadings in the Amended Statement under Order 16 Rule 3 (2) (a) of the National Court Rules filed on 26 March 2015 by the Plaintiff in support of its judicial review application in OS (JR) No 682 of 2013 be struck out for being defective, and consequently, the Notice of Motion filed on 26 March 2015 and proceeding entitled OS (JR) No 682 of 2013 be dismissed for being incompetent or otherwise an abuse of court process-
   6. in the further alternative, the entire consolidated judicial review proceedings be dismissed for one or more of the following grounds set out in Term 1 (3) or (4) of the Notice of Motion.
2. The application is opposed by the Plaintiff who seeks dismissal of the application.
3. Having considered the material relied upon and submissions made, for the reasons that appear hereunder I uphold the application and dismiss the consolidated proceedings.

BACKGROUND

4. The relevant background to this dispute which has now spanned twelve (12) years of litigation and involved three Supreme Court appeals requires some explanation to properly consider the issues requiring determination.
5. The Plaintiff’s predecessor (the National Provident Fund Board of Trustees) was the registered proprietor of State Lease Volume 13 Folio 246 Portion 2123, Milinch Granville, Fourmil of Moresby, National Capital District Portion 2132 as delineated on registered Survey Plan cat No 49/2217 (the State Lease).
6. The State Lease expired sometime around 2012.
7. The Tenth Defendant, amongst other applicants including the Plaintiff, applied to the Land Board for title to the State Lease.
8. The Tenth Defendant and the Plaintiff were the two shortlisted applicants.
9. On or around 2 May 2012, the Land Board recommended to the Minister for Lands & Physical Planning to grant a lease of 99 years over the State Lease to the Tenth Defendant. The Plaintiff was advised of the recommendation.
10. Aggrieved by the recommendation of the Land Board, the Plaintiff appealed the decision to the Minister for Lands & Physical Planning under Section 62 of the Land Act 1996 within the 28 days prescribed period.
11. On 7 May 2013, based on advice of the Minister for Lands & Physical Planning at the relevant time, the Head of State refused and dismissed the appeal.
12. On 20 September 2013 the Plaintiff filed proceedings OS (JR) No 682 of 2013 seeking leave to judicially review the decisions of the Land Board to reject its application for renewal of the State Lease and of the Minister to dismiss its appeal.
13. On 24 October 2013, the National Court granted leave to the Plaintiff.
14. The Plaintiff asserts however that unbeknown to it the following set of events had occurred and/or been carried out by the First, Second, Third and Eighth Defendants:
    1. On 7 May 2013, the First Defendant (Yawenaik Holdings Limited) was granted State Lease Volume 54 Folio 3 over Portion 1568 (Portion 1568). Portion 1568 was the land adjoining Portion 2123.
    2. On 1 August 2013, the Second Defendant (Surveyor General) approved and registered Survey Plan cat. No. 49/3130 which was spearheaded by the First Defendant. That Survey Plan re-classified Portions 1568 and 2123 into Portions 3162 and 3163, respectively and encroached on 46.55ha of land in Portion 2123; increasing the size of Portion 3162 (formerly Portion 1568) by 46.55ha and decreasing Portion 3163 (formerly Portion 2123) by 46.55ha.
    100. On 16 August 2013, the Third Defendant (Romilly Kila Pat) signed a Notice under Section 131 of the Land Act approving the First Defendant's application to consolidate Portion 1568 into Portion 3162 with an extension of 46.55ha as surveyed and registered under Survey Plan cat. No. 49/3130.
    4. On 16 August 2013, the Third Defendant accepted the First Defendant's surrender of its State Lease over Portion 1568.
    5. On 19 August 2013, the Third Defendant granted Portion 3162 to the First Defendant.
    6. On 20 August 2013, Portion 3162 was transferred from the First Defendant to the Eighth Defendant.
    7. The Eighth Defendant (Sanamo Land Group) subsequently sub-divided Portion 3162 into 118 Residential (high covenant) Leases.
15. On 11 March 2015 the Court granted an interim injunction against the Fourth Defendant, the Registrar of Titles.
16. On 26 March 2015, the Plaintiff filed its substantive Notice of Motion for its judicial review application in OS (JR) No 682 of 2013.
17. On 29 July, 2015 the Eight Defendant (Sanamo Land Group) filed a motion seeking leave to be joined as a party to the proceedings claiming it was the registered proprietor of Portion 3162.
18. On 7 December 2015, the Plaintiff filed a further judicial review proceeding in OS (JR) No. 789 of 2015 challenging decision of the Surveyor General in approving for registration Survey Plan Cat No 49/3130 which had reclassified Portion 1568 (the land adjoining the State Lease in OS (JR) No 682 of 2013) and Portion 2123 (State Lease subject of OS (JR) No 682 of 2013) into Portion 3162 and Portion 3163, respectively.
19. On 9 May 2016, the proceeding OS (JR) No. 789 of 2015 was consolidated with OS (JR) No. 682 of 2013 (the consolidated proceeding).
20. On 12 September 2017, the Plaintiff's application for interim injunctions against the Sixth Defendant (Registrar of Titles) and the Eighth Defendant (Sanamo Land Group) was granted.
21. On 30 October 2017 the consolidated proceeding was dismissed by Makail J for want of prosecution.
22. On 3 November 2017, the Plaintiff filed a motion seeking to set aside the ex parte order of 30 October 2017 dismissing the consolidated proceeding.
23. On 6 December 2017, the Plaintiff’s application to set aside the dismissal of the ex-parte order of 30 October 2017 was dismissed by Makail J.
24. On 15 January 2018, the Plaintiff in proceedings SCM No. 03 of 2018 appealed the decision to dismiss made on 6 December 2017.
25. On 5 September 2018, the Supreme Court allowed the appeal and set aside the orders made on 6 December 2017.
26. Without going into chapter and verse of the history thereafter, one involving further interim applications, on 7 March 2022 Dingake J made various directional orders inter alia varying Terms 7 and 8 of the Order of 12 September 2017 that did not apply to 9 portions of land and progressed the matter to trial.
27. On 3 May 2022, on application by the First and Eighth Defendants, the consolidated proceeding was summarily determined and dismissed by Dingake J for failure of the Plaintiff to comply with orders of the Court.
28. On 10 June 2022, the Plaintiff in proceedings styled SCM No. 12 of 2022 appealed the dismissal orders of 3 May 2022.
29. On 15 December 2022, the Supreme Court upheld the appeal and remitted the matter back to the National Court.
30. On 20 January 2023 the Tenth Defendant filed a Notice of Motion for summary determination.
31. On 3 April 2023 the application of the Tenth Defendant was dismissed by Miviri J.
32. On 12 May 2023, the Tenth Defendant filed an application in proceedings styled SCM No. 30 of 2024 seeking leave of the Supreme Court to appeal the decision to dismiss its application made on 3 April 2023.
33. On 17 November 2023, the Tenth Defendant’s Application for Leave to Appeal was refused.
34. Aggrieved the Tenth Defendant requested a rehearing on the Application for Leave by the Full Court de novo.
35. On 18 June 2024, Supreme Court granted leave to the Tenth Defendant to appeal the decision of Miviri J on 3 April 2023.
36. On 9 July 2024 the Tenth Defendant instituted its appeal against the decision of 3 April 2023.
37. On 29 May 2025, the Supreme Court upheld the appeal, set aside the order of 7 March 2022 and remitted the matter to the National Court for directions to progress the substantive judicial review proceeding.
38. Against that background, on 23 June 2025 the Tenth Defendant filed its present application before this Court.
39. The following month, namely on 24 July 2025 the Plaintiff filed a Notice of Motion seeking orders inter alia to permit it to file a Further Amended Statement under Order 16 Rule 3(2)(a) and a Further Amended Notice of Motion under Order 16 Rule 5(1) of the NCR.
40. On 29 July 2025 the Plaintiff’s Board of Directors passed a resolution “retrospectively authorising the commencement and or ongoing litigation styled in OS (JR) No 789 of 2015 consolidated with OS (JR) No 682 of 2013 and any litigation related thereto”.

ISSUES

41. The issue before the Court is whether the Court should grant the application and dismiss the proceedings described as OS (JR) No 682 of 2013 or alternatively the consolidated proceeding.
42. The Tenth Defendant raises the following issues:
    1. Whether the failure of the Plaintiff to name the Head of State (through the Attorney General as nominee) as the decision-maker of the decision under review is fatal such as to warrant the dismissal of the entire proceedings.
    2. Whether the want of a board resolution at the time the proceedings were instituted and thereafter to maintain the proceedings warrants dismissal and if so the effect of the late passing of a board resolution to maintain the proceedings.
    100. Whether events have overtaken the utility of the proceedings.
    4. Whether the Plaintiff’s failure to comply with directional orders issued consistent with Order 16 Rules 13(6) and (7) of the NCR to set the matter or the judicial review application down for hearing within a reasonable time warrants dismissal.
    5. Whether the Amended Order 16 Rule 3(2)(a) Statement should be struck out for being defective, and consequently, proceedings OS (JR) No 682 of 2013 be dismissed.
43. In the alternative the Tenth Defendant submits that the consolidated proceeding be dismissed for being incompetent or otherwise an abuse of process for disclosing no reasonable cause of action.
44. It is the contention of the Tenth Defendant that:
    1. Each ground for dismissal raised by it must be considered in its own merit in considering its application.
    2. The grounds for dismissal raised in the application raise issues of competency of the proceeding, and or otherwise abuse of court processes by the Plaintiff which are within the Court's jurisdiction to consider and deal with.
    100. The Plaintiff has been put on notice of the competency issues and issues of abuse of court process raised in the application.
45. It is contended on behalf of the Tenth Defendant that the Court should consider all grounds for dismissal because the proceedings have taken twelve years to date, the proceedings have been protracted by the conduct of the Plaintiff in filing appeals to the Supreme Court, the Plaintiff has been lax in prosecuting the matter and the need for finality is an important principle of law.

CONSIDERATION

46. Pursuant to Order 16 Rule 13(13)(2)(a) of the NCR the Court may summarily dispose of a substantive application for judicial review for reasons of want of prosecution, want of competence or for any other reason including abuse of process or failing to disclose a reasonable cause of action (Alex Timothy v. Hon Francis Marus (2014) SC1403 (per Injia CJ, Davani & Gabi JJ at [22]; Agiru v The Electoral Commission [2002] SC687).
47. The Court may do so on application by a party, of the Court’s own motion or on referral by the Registrar (Order 16 Rule 13(13(2)(b)).
48. An objection to competency must raise serious threshold issues concerning the legality or viability, or otherwise, of a particular process before the Court. If there is no right to bring the proceedings, if the law’s requirements are not complied with, then an objection based on competency can be properly taken to the institution of the proceedings (PNG Forest Authority v Securimax Security Pty Ltd [2003] SC717 per Sakora J).
49. The phrase abuse of process connotes that the process of the Court must be used properly and bona fide and is not to be abused. If the Court’s machinery is used improperly or incorrectly then the Court has a duty to intervene and prevent the abuse (Wartoto v The State [2015] PGSC 1; SC1411 (per Sakora J and Kandakasi J (as he then was) at [37] citing with approval Andrew Nagari v. Rural Development Bank; Rural Development Bank v Andrew Nagari [2007] N3295 at [38]).
50. The Court’s power in this regard is wide and the circumstances that may amount to abuse are not limited but can be developed on a case by case basis (Somare v Manek [2011] SC1118 at [14] citing with approval The National Executive Council, the Attorney General and Luke Lucas v Public Employees Association of Papua New Guinea [1993] PNGLR 264; Andrew Nagari v. Rural Development Bank; Rural Development Bank v. Andrew Nagari [2007] N3295).
51. Subject to jurisdictional limits fixed by Statute, the Court has wide powers to manage and control proceedings before it, to take firm control of the proceedings to ensure that the business of the Court is conducted in an orderly, fair and timely manner, to weed out actions that do not disclose a reasonable cause of action, that are frivolous, vexatious or an abuse of process or are irregular and to prevent the misuse of its procedural rules that are unfair to a party to litigation before it or would otherwise bring the administration of justice into disrepute (Karl Paul v Aruai Kispe [2001] N2085 per Injia J (as he then was), cited with approval in Keka v Yafaet [2018] SC1673 at [26] and Bluewater International Limited v Mamu [2019] SC1798 at [38]).
52. Guided by these principles I turn to the grounds of dismissal raised by the Tenth Defendant as earlier identified.
    

Whether the failure of the Plaintiff to name the Head of State (through the Attorney General as nominee) as the decision-maker of the decision under review is fatal such as to warrant dismissal of the entire proceedings.

53. It is submitted on behalf of the Tenth Defendant that the proceeding described as OS (JR) No 682 of 2013 should be dismissed for failing to name the decision-maker who is the Head of State. The Tenth Defendant's submissions on this ground is in two (2) parts namely:
    1. The Land Board recommendation was superseded by decision of the Head of State; and
    2. The Head of State as decision-maker was not named as the final decision-maker.
54. It is submitted on behalf of the Plaintiff that:
    1. the failure to name the Head of State is a curable procedural omission, not a fatal defect in circumstances where the State has been named as a party in the consolidated proceeding;
    2. section 3 of the Claims By and Against the State Act 1996 (the Claims Act), which provides that a person making a claim against the Head of State shall in proceedings make such claim against the Attorney General on behalf of the Head of State and Governor-General, does not by its language or legislative purpose apply to judicial review proceedings under Order 16 of the NCR;
    100. the later statutory appeal decision to the Minister constitutes the operative and determinative act giving rise to the Plaintiff's grievance, the judicial review jurisdiction of the National Court properly invoked and competent as there is a dispute as to the statutory appeal decision warranting full and proper adjudication on its merits in OS (JR) No. 682 of 2013. This is a critical distinction from the cases of Ombudsman v Yama (2004) SC747 and Gelu v Sheehan [2013] PGNC 235; N5498 relied upon by the Tenth Defendant, where the subsequent, correct and final decision was not challenged at all in either of those cases, unlike in this case.
55. In considering the submissions advanced with respect to whether the correct decision- maker was named it is necessary to consider the relevant legal principles.
56. In Ombudsman Commission v Peter Yama (2004) SC 747 the Supreme Court (Injia DCJ (as he then was), Sakora & Sawong JJ) said:

The principles on the nature and scope of judicial review of administrative action of public authorities are established in many cases. Judicial review is about the process by which the decision is arrived at and not about the correctness of the decision...The nature of judicial review is sufficiently described by the learned authors of Review of Administrative Action, in the following statement:

"The right person must apply for an appropriate remedy against the right person at the right time and the Court must be persuaded to grant the remedy..." (Review of Administrative Action, Law Book Company 1987, at p.22, adopted in John Mua Nilkare v The Ombudsman Commission, N1344 (1995)).

[Emphasis retained]

57. The importance of naming the correct decision-maker in judicial review proceedings was reaffirmed in the recent decision of Kiap v Kasper [2023] SC747 (Kandakasi, DCJ, Polume-Kiele, Dowa JJ). In that case the correct decision maker, the Appeals Tribunal, which compromised a number of members, was not named, the Plaintiff naming only the Chairman of the Tribunal.
58. At [39] – [40] Kandakasi DCJ said:

Not naming the decision maker

39. Closely connected to the decision that was the subject of the judicial review proceeding is the question of who made that decision. That question gives rise to my third reason. ....In short, the proceeding proceeded without the decision maker being properly named and heard before the final decision in the matter. This rendered the proceedings defective and most importantly the hearing and outcome was defective, improper and not binding on the decision maker. Consequently, the decision of the Appeals Tribunal remains unchallenged and undisturbed.
40. The application for leave for judicial review and later the review itself was therefore defective. This in my view rendered the grant of leave for judicial review, the substantive judicial review and the various reliefs the learned trial judge granted were highly irregular which warrant an immediate quashing and set aside.
    
59. In Temai v Kool [2024] PGNC 21; N10667 Dingake J followed the decision in Kiap v Kasper when, following a grant of leave, he dismissed a proceeding for failing to correctly identify the correct decision-maker.
60. In the present case the correct decision to be reviewed was the decision of the Head of State acting on the advice of the Minister to grant the State Lease to the Tenth Defendant. Neither the Minister nor the Land Board made that decision. That is clear from the process and procedure for the grant of state lease under the Land Act 1996 (the Act).
61. Section 57 of the Act details the functions of the Land Board as follows:

57. FUNCTIONS OF THE LAND BOARD.

(1) In addition to such other functions as are conferred on it by this Act, the Land Board shall consider and make a recommendation on any matter referred to it by the Minister or by the Department.

(2) Except where the Minister is empowered by this or any other Act to make a direct grant of a State lease, the Land Board shall consider all applications for grant of leases which have been investigated and referred to it by the Department and all other matters that are remitted to it by the Minister for its consideration.

62. The Land Board meetings are to be conducted pursuant to s 58 of the Act and the Land Board makes a recommendation to the Minister on applications for state lease inter alia as follows:
    63. MEETINGS OF THE LAND BOARD, REPORTS, ETC.

(1) At least seven days before a meeting of the Land Board, the Chairman shall publish in the National Gazette a list of–

(a) the applications and other matters to be considered; and

(b) lands to be dealt with,

by the Board at the meeting.

(2) The Chairman shall notify by post every person who, in his opinion, is interested in an application or matter, of the date on which it will be considered by the Land Board.

(3) The meeting of the Land Board shall be held not less than seven days nor more than 42 days after the publication of the list referred to in Subsection (1), and the Board shall deal with applications and matters, hear any objections and report on the applications or matters within 14 days to the Minister.

(4) The Chairman shall cause meetings of the Land Board to be held as he thinks necessary.

(5) Subject to Section 106, for the conduct of business at a meeting of the Land Board–

(a) three members, of whom one is the Chairman or a Deputy Chairman nominated for the purpose under Section 55(5), are a quorum; and

(b) the Chairman or the Deputy Chairman nominated for the purpose, shall preside; and

(c) all matters shall be decided by the majority of votes of the members present; and

(d) the person presiding has a deliberative and, in the event of an equality of votes on a matter, also a casting vote.

(6) The person presiding at a meeting of the Land Board shall–

(a) where he thinks it necessary to do so; or

(b) where he is directed by the Chairman to do so,

exclude any or all members of the public from the meeting.

(7) The Departmental Head or his delegate–

(a) may attend any meeting of the Board; and

(b) shall, where so requested by the Chairman, attend a meeting of the Board,

in the capacity of adviser to the Board.

(8) Where the Land Board–

(a) takes evidence at a meeting from which members of the public have been excluded; or

(b) is directed by the Minister that the recommendation of the Board is not to be made available to members of the public; or

(c) deals with an application or matter that has been specified in the notice in the National Gazette under Subsection (1) to be the subject of a confidential report,

it shall report on it within 14 days to the Minister.

(9) In respect of each application the Land Board shall recommend–

(a) the applicant to whom, in the opinion of the Land Board, the State Lease should be granted; and

(b) the applicant who, in the opinion of the Land Board, is the second-choice successful applicant; and

(c) the applicant who, in the opinion of the Land Board, is the third-choice successful applicant,

and where the Land Board, in making a recommendation in any case, considers that two or more applicants are of equal merit, it may decide the matter by ballot and shall report on the ballot to the Minister within 14 days.

(10) The Chairman shall forward notice of the Land Board’s recommendations, other than a recommendation to which Subsection (8) applies, to every person who, in his opinion, is interested in an application or matter dealt with by the Board.

(11) A member of the Land Board shall not sit on any matter in which he is directly or indirectly interested.

[Underlining added]

64. A recommendation of the Land Board to the Minister is not final as pursuant to s 62 of the Act an unsuccessful applicant has 28 days to appeal to the Minister for Lands on payment of a prescribed fee.
65. I set out sections 62 and 63 in full with underlining for discussion purposes:

PART VIII. – APPEALS AND REPORTS.

62. APPEALS.

(1) A person aggrieved by a decision of the Land Board may, not later than 28 days after notice is forwarded under Section 58(10), forward a notice of appeal to the Minister.

(2) An appeal shall be accompanied by a deposit of K500.00, which shall, subject to Subsection (3), be refunded when the appeal has been decided.

(3) If the Head of State, acting on advice, thinks that the appeal has been made on frivolous grounds, the Head of State, acting on advice, may reject the appeal and direct that the whole or any portion of the deposit shall be forfeited to the State.

(4) Subject to Subsection (5), the Head of State, acting on advice, shall determine an appeal under this section, and his decision is final.

(5) Where an appeal under this Section is upheld, the Head of State, acting on advice, may refer the matter back to the Land Board for re-hearing.

63. REFERENCE OR REPORTS TO MINISTER.

(1) A report or recommendation of the Land Board shall–

(a) if no appeal is made under Section 62, at the expiration of the period referred to in Subsection (1) of that section; or

(b) if any such appeal is made, after the appeal is determined,

be referred to the Minister.

(2) In addition to any other powers conferred by or under this Act, the Minister shall, if he disagrees with a report or recommendation of the Land Board, and may for any other reason–

(a) refer any matter back to the Board for re-hearing, the taking of fresh evidence, the furnishing of a further or additional report, or otherwise; or

(b) refer any matter to the National Executive Council.

(3) The decision of the Head of State, acting on advice, on a matter referred to the National Executive Council under Subsection (2)(b), is final.

66. It is clear from these provisions that it is the Land Board who makes a recommendation to the Minister on the grant of state lease. An aggrieved applicant then has a right of appeal to the Minister against any recommendation made by the Land Board. However, it is the Head of State, acting on advice, who determines to uphold or reject the appeal, a decision that is final.
67. That it was the Head of State, acting on advice, who was the correct decision-maker is acknowledged by the Plaintiff in its Grounds of Review found at 3.2 of its Amended Statement under Order 16 Rule 3(2)(a) of the NCR as follows (see also [3.2 (c), (d) and (e)]):

3.2 The decision of the Head of State acting on advice to dismiss the appeal

68. Applying the legal principles outlined to the facts in the present case the Plaintiff and the Tenth Defendant applied for state lease over the same land. Their application was considered by the Land Board in its Special Meeting No.01/2012 published in Gazette No G119 on 05 April 2012.
69. On 2 May 2012 the Land Board made a recommendation to the Minister that State Lease be granted to the Tenth Defendant.
70. The Plaintiff was given notice of the recommendation.
71. On 22 May 2022 the Plaintiff appealed the recommendation of the Land Board to the Minister.
72. On 7 May 2013 in National Gazette publication No. G182, the Head of State acting on advice, dismissed the Plaintiffs appeal.
73. On 20 September 2013 in OS (JR) No 682 of 2013 the Plaintiff sought and was granted leave to review the decision of the Land Board and the decision of the Minister. However, leave was granted to review the wrong decision by the wrong decision-maker.
74. The Court accepts the submission on behalf of the Tenth Defendant that having appealed the recommendation of the Land Board, as the Plaintiff was entitled to do, it was the ultimate or final decision in the decision-making process that was amenable to review, the earlier recommendation of the Land Board having been superseded by the lodging of an appeal by the Plaintiff against that recommendation, which appeal was then unsuccessful. The final decision was the decision of the Head of State acting on advice to reject the Plaintiff’s appeal.
75. In Gelu v Sheehan (supra), Injia CJ said at [14 (b)]:

It is the ultimate or final decision in the decision-making process that is amenable to review. Where a statute provides for a series of steps to be taken, with decisions to be made at each step of the decision-making process, it is preferable to await the outcome of the final decision. It is the final decision in the decision-making process that is amenable to judicial review which ordinarily will be inclusive of earlier decisions made along each step of the process. This avoids multiplicity or duplicity of applications for leave for review. It is also to avoid unnecessary challenges to earlier decisions made in the decision-making process when the final decision has superseded earlier decisions: Ombudsman Commission v Peter Yama (2004) SC 747. An applicant must not be permitted to hack back on those earlier decisions and instead, focus on the latest and ultimate or final decision.

76. In Ombudsman Commission v Peter Yama (supra), the issue before the Court was whether the proper decision the subject of judicial review, was the review of the Commission’s decision to refer the Respondent to the Public Prosecutor for alleged misuse of public monies whilst an elected member of Parliament or the Public Prosecutor’s decision to refer the Respondent to the Leadership Tribunal. The Court concluded that it was the prosecutor who had made the decision, a decision that superseded the Commission’s decision.
77. The Court held:

In the present case, in our view, the Public Prosecutor made an independent decision under Constitution, S.29(1) and 177(1)(b), and OLDRL, S.27(2) to refer the matter to a Tribunal which was established upon his request by the Chief Justice. His independent decision superseded the Commission’s decision. The functions of the Commission ceased upon the referral to the Public Prosecutor. Therefore, the decision challenged by the Respondent was the wrong decision to challenge. If there was any challenge to be made, it was the decision of the Public Prosecutor. The time for challenging the Commission’s decision was within four (4) months from the date of the Commission’s decision to refer him. This issue was not addressed by the Court, both at the leave stage and substantive application.

[Underlining added]

78. The facts in those case may differ from the present case however the pronouncement of legal principle is applicable.
79. In the present case, the decision to be challenged was the decision of the Head of State acting on advice to dismiss the Plaintiff’s appeal from the recommendation of the Land Board to the Minister, the Plaintiff’s pleading in its Statement acknowledging as much while wrongly conflating the decision-makers (see for example 3.2 (3) of the Statement).
80. Further, the relief sought by the Plaintiff at [3] in its Amended Statement on 26 March 2015 (see also [2(c)] of the Relief sought in its Amended Statement) inter alia by way of certiorari to quash the “decision of the Head of State and subsequently the First Defendant to dismiss the Plaintiff’s appeal against the decision of the Third Defendant made at Meeting No 01/2012 item 40 published in the National Gazette G182 on 7 May 2013” was not open to it.
81. This was because:
    1. the Plaintiff had taken a further step and appealed the decision to the Minister which decision was then dismissed by the Head of State, on advice;
    2. leave was not sought by nor granted to the Plaintiff to judicially review any decision made by “..the Head of State and subsequently the First Defendant..”; and
    100. there was no decision made by the First Defendant subsequent to a decision by the Head of State, the Plaintiff’s pleading defective on its own case.
82. It is the Plaintiff’s contention that the critical distinction to be made with respect to the authorities of Gelu and Yama relied upon by the Third Defendant is that in both, the subsequent, correct and final decision was not challenged at all in either of those cases, unlike in the present case. It is submitted that the later statutory appeal decision constitutes the operative and determinative act giving rise to the Plaintiff’s grievance (see [89] of written submissions). It is submitted that the jurisdiction of the National Court remains properly invoked and the proceedings competent because there is a dispute as to the validity of the statutory appeal decision.
83. The Plaintiff’s submissions are rejected. They ignore, the pronouncement of legal principle identified earlier. They ignore that the right decision made by the right decision-maker must be named, the Plaintiff having been granted leave to review the wrong decision without naming the correct decision-maker.
84. It is further contended by the Plaintiff that a decision to dismiss should be exercised sparingly and that the Court should exercise a cautious approach before dismissing the proceedings for the reasons outlined as [90] of the Plaintiff’s written submissions inter alia:
    1. The convoluted long history, including three appeals, that calls for an expedited substantive hearing.
    2. The Plaintiff’s filing of a Notice of Motion to seek leave to amend to impugn the decision of the Head of State.
    100. The Plaintiff should be given the opportunity to be heard on its motion to amend by reasons of the provisions of s 59 of the Constitution which provide for the principles of natural justice in judicial and administrative proceedings (s 59(1) and that the “minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly” (s 59(2)).
    4. The Defendants, including the Tenth Defendant, would not be precluded from raising these matters in the event that the Plaintiff’s amendment application is refused.
85. While the Court acknowledges the need for caution on any application to dismiss, the submissions of the Plaintiff ignore what is a critical defect in its pleadings, one that goes to the jurisdiction of the Court to entertain the judicial review proceedings.
86. It is a circumstance relevant not only at the substantive stage but at the leave stage, as leave can only be granted to review a decision by a decision-maker entitled to make the decision. In this case leave was granted to review decisions by persons with no authority to make them. As such there can be no decision/s to review. The Plaintiff can have no reasonable cause of action and the proceedings are an abuse of process. The grant of leave was defective and the failure to properly cite the correct decision-maker of the decision sought to be impugned renders the proceedings liable to be dismissed.
87. The Plaintiff’s attempt to characterise the issue as one where the Plaintiff has sought to challenge a decision made within the statutory appeal powers exercised under s 62 of the Act, does not remedy its failure to name the correct decision-maker.
88. Further, the attempt by the Plaintiff to amend its pleadings at this late stage does not remedy the defect. This is not a circumstance where the Plaintiff is seeking to achieve the objectives under the conventional criteria for amendments (Dads Investment Corporation Ltd v Samson [2023] PGSC 134; SC2485 at [15]).
89. This is a case where twelve (12) years after the Plaintiff was granted leave to review decisions the Court is unable to review, the Plaintiff seeks to amend its pleading and substantive Motion for relief to impugn the decision of the Head of State who was never made a party to the proceedings. To allow the Plaintiff to do what it seeks to do would, in my respectful view, be highly irregular and improper. It would also bring the administration of justice into disrepute.
90. The requirement to accord the parties natural justice is not a requirement that settles like “dew from Heaven” on one party only. The requirement to act fairly and be seen to act fairly applies to all parties, parties who, here, have been conducting litigation that is time sensitive within the goalposts set by the Plaintiff. It is the Plaintiff who now seeks to move the goalposts with little acknowledgment of the potential detriment of doing so to the other litigants. A Review Book is yet to be prepared. A Statement of Agreed and Disputed Facts and Legal Issues is yet to be settled. Notices have to be given under the Evidence Act.
91. Given the history of the litigation, to assume that these further steps are likely to be undertaken without issue, in the spirit of compromise, would be a folly.
92. The Plaintiff should not now be permitted to do so under the cloak of reinvigorated expedition and/or overture that cites the length of the time the proceedings have been on foot as a relevant factor that supports its case or that what it seeks to do is inconsequential.
93. The delay in this matter being heard on a substantive basis, irrespective of how it has come about, is an embarrassment to the administration of justice.
94. Justice delayed is justice denied. The impacts of delay are well known, not only to the quality and/or availability of evidence but the cost to litigants, to the Court and in the end to society as a whole who have a vital interest in the administration of justice. In this case it is unchallenged that the land has been reclassified by survey, subdivided into smaller portions and allotments and sold to third parties who have acquired indefeasible rights over the subdivided land (see for example the terms of order 1 of the order of 7 March 2022).
95. The Court must be vigilant in ensuring that litigation is not conducted in a way that may bring the administration of justice into dispute. This is one such case, the time for challenging the decision of the Head of State, acting on advice, made on 7 May 2013 one required (in the context of judicial review proceedings where the Plaintiff is seeking relief in the form of certiorari to reclaim the land) to have been made within four (4) months from that date, namely 7 September 2013.
96. The fact that this matter has had a long and tortuous history is regrettable, however it does not alter the Court’s conclusion as to the propriety of the Plaintiff’s proposed course.
97. In conclusion, and for the reasons given, the Court accepts the proceedings are incompetent and/or otherwise an abuse of court process by reason of the Plaintiff’s failure to seek to review a final decision of the Head of State under Section 62 of the Act, the correct decision-maker the Head of State, not named through his nominal defendant. The Plaintiff’s cause of action as presently pleaded cannot succeed.
98. The Court’s findings to this end address other grounds raised by the Tenth Defendant.
99. The Plaintiff’s Amended Statement should be struck out for being defective given the failure to name the correct decision-maker, the Plaintiff’s pleading a mixed bag where, as earlier discussed, reference is made variously to the decision under review being that of the First Defendant and/or the decision of the Head of State on advice (see e.g. 3.2 (c) (d) and (e)) of Statement in Support filed 20 September 2013 as amended on 26 March 2015). The grant of leave to review is defective. It would be contrary to the interests of justice to permit the Plaintiff the opportunity to further amend at this late stage. Given the nature of the defect, there is no denial of natural justice to the Plaintiff in so concluding without the need for further argument to be had on the Plaintiff’s motion to amend.
100. These are consolidated proceedings. The Court accepts the submission on behalf of the Plaintiffs that events have overtaken the utility of the reliefs sought by the Plaintiff and it would be contrary to the good administration of justice to allow the consolidated proceeding to continue. The subject land has been subdivided a number of times and sold to third parties in good faith. Events have moved on, this case highlighting the importance of ensuring that proceedings of this nature are determined with expedition to avoid the very issues that present here including an attempt to unravel/unwind a range of transactions involving a large number of people over many years. The Plaintiff is not left without remedy. Its remedy, however, lies elsewhere than in judicial review.
101. Finally, I address the Plaintiff’s contention that because this proceeding is judicial review there is no claim against the Head of State and as such s 3 of the Claims Act does not apply. This argument, respectfully, is flawed for no other reason than in seeking by its Notice of Motion filed on 24 July 2025 to further amend its Statement in Support and Notice of Motion for substantive relief to include the Head of State through his nominal defendant the Plaintiff is effectively conceding that s 3 does apply to proceedings for judicial review. The Court accepts the Tenth Defendant’s submissions in this regard.
102. The Court was not referred to any authority that has held that s 3 does not apply to proceedings for judicial review. While learned Counsel for the Plaintiff referred the Court to the decisions of Mision Asiki v Manasupe Zurenouc & Ors [2005] SC797 and Frederick Martins Punangi v Sinai Brown as Minister for Public Service, Sir Michael Somare as Chairman of the National Executive Council and the State [2004] N2661 in support of its proposition, those authorities were not concerned with s 3, rather s 5 of the Claims Act. They concluded that s 5 did not apply to proceedings for judicial review, not that the Claims Act including s 3 did not apply to judicial review proceedings.
103. Section 5 is concerned with notice as a mandatory requirement to filing of suits against the State or any of its institutions especially where the suit will result in monetary claims against the State. It provides in short that no action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with the section, including inter alia providing for notice under the section to be given (a) within a period of six months after the occurrence out of which the claim arose; or (b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach.
104. In Asiki, the Court found that the notice requirements apply only to actions that are founded on contract or tort or breaches of constitutional rights and that s 5 does not apply to actions seeking orders in the nature of prerogative writs commenced under Order 16 of the National Court Rules, as Order 16 provides a comprehensive and exclusive procedure for judicial review. The appellant in that case was thus under no obligation to give notice under s 5 and, having been granted leave, ought to have had the merits of his application for judicial review determined by the National Court.
105. With respect to Order 16 proceedings however the collective provisions s 8 of the Claims Act and Order 16 Rule 3(3) of the NCR require that the State be accorded the opportunity to be heard on a leave application which is an ex parte hearing. The instrumentalities of State are represented by the Attorney-General or another authority in accordance with s 4 of the Claims Act.
106. Practically, and pursuant to the requirements of Order 16 Rule 3(3), the Secretary of Justice is informed by way of service of the relevant documents two clear days before the application is made. The notice to the Secretary for Justice is sufficient for the purposes of notifying the State. There is no need for a separate notice of intention to sue or make a claim against the State as there is under s 5 of the Claims Act.
107. Aski supports the proposition that the requirement to notify the Secretary of Justice under Order 16 Rule 3(3) is specifically applicable to judicial review application and akin to the notice under s 5. It did not however rule that s 3 did not apply to judicial review proceedings under Order 16 of NCR.
108. Section 3 of the Claims Act is in these terms:
     

SUIT AGAINST THE HEAD OF STATE.

A person making a claim against the Head of State, or Governor-General, acting on advice, shall, in the proceedings, make such claim against the Attorney-General who shall be the nominal defendant on behalf of the Head of State and Governor-General.

109. A basic tenet of statutory interpretation is to give to ordinary words their plain ordinary meaning (Application by Nilkare, Review Pursuant to s 154(4) of the Constitution [1998] PNGLR 472).
110. Section 109(4) of the Constitution provides that

Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, and there is no presumption against extra-territoriality.

111. The terms of s 3 are clear and should be accorded their natural meaning, namely, a claim against the Head of State, acting on advice, shall be made against the Attorney General as nominal defendant. The provision does not limit a claim to a particular action. It does not exclude judicial review proceedings.
112. It is a conclusion reinforced by the interpretation provisions of s 1 of the Claims Act, which defines “suit” as follows:

In this Act, unless the contrary intention appears, “suit” includes any action or original proceeding between parties in any court of competent jurisdiction.

113. While a legal “claim” is not necessarily a “suit”, the latter is a formal legal proceeding that is the vehicle that enables a legal claim to be brought into a court to enable a judge to make a decision. The definition of “suit” does not exclude judicial review proceedings.
114. In my respectful view there is no persuasive support for the proposition advanced by the Plaintiff that s 3 does not by its language or legislative purpose apply to judicial review proceedings under Order 16 of the NCR.
115. It is a proposition unsupported by authority or any learned text on the subject to which I have been referred or considered.
116. The Plaintiff’s submissions as to why Wereh v National Executive Council [2024] PGNC 392; N11064 is wrong are rejected.

Whether the want of a board resolution at the time the proceedings were instituted and thereafter to maintain the proceedings warrants dismissal and if so the effect of the late passing of a board resolution to maintain the proceedings.

117. The thrust of the Plaintiff’s submissions opposing the Tenth Defendant’s submissions on this point is that the authorities in this jurisdiction on which it relies (Radio Taxis Ltd v Wano [2018] PGSC 98; SC1768 (Radio Taxis), Opotio v Bare [2023] PGNC; N10400 (Opotio), Huon Logistic Ltd v Kekam Limited [2024] PGNC342 (Huon); N11026 and Ramu Nico Management (MCC) Ltd v Ane [2025] PGNC 22; N11150 (Ramu)) that support the requirement of a board resolution to authorise the commencement of proceedings are, firstly, not persuasive or binding and should not be followed and secondly, do not have retrospective application, the Plaintiff relying on the Supreme Court decision in Polem Enterprise Ltd v Attorney General [2008] PGSC9; SC911 (Polem) to that end. If however the Court concludes that the authorities do apply then they should only be applied after the 28 September 2018, the proceeding having been commenced prior to the date when Radio Taxis was handed down.
118. It is submitted that the Plaintiff’s proceedings were lawful at the time of commencement and the later decisions should not be followed where inconsistent with Polem unless stated to have retrospective effect, which is not the case. In the alternative, if the Court is not persuaded by the Plaintiff’s submissions then the board resolution now in evidence should be given retrospective effect.
119. The Plaintiff further argues that the want of board resolution is not a proper issue to dispute the standing of the Plaintiff in the proceeding.
120. It is submitted on behalf of the Tenth Defendant inter alia that:
     1. The Tenth Defendant is not challenging the Plaintiff’s standing with respect to the decision the subject of review itself but the standing of the Plaintiff to bring the proceedings in the first place.
     2. The law on want of board resolution has statutory foundation in s 138 and Schedule 4 of the Companies Act 1997 (CA). By virtue of s 9 of the Constitution it has always been the law, remains in force and continues to apply to regulate the conduct and affairs of a company subject to the constitution of the company. The law has not changed and Polem is distinguishable on its facts.
     100. The Plaintiff cannot retrospectively pass a resolution to validate the filing of the proceedings because:
          • (1) there is no express provision in the CA or the constitution of the Plaintiff company giving it power to do so; and
          • (2) there is currently a different board of the Plaintiff company than the board that existed when the proceedings were instituted such that the Plaintiff cannot rectify the defect; and
          • (3) any dicta to this effect in Huon was obiter as it was not the issue before the Court.
     4. There is no evidence of any express resolution by the directors sitting as a board of the company to pass a resolution pursuant to the company constitution and Schedule 4 of the CA to file proceedings in the name of the company, consequently the Plaintiff did not authorise the filing of the proceedings and the proceeding are a nullity for lack of standing and should be dismissed.
121. It is settled law that a Plaintiff must have the legal capacity to sue and if the proceedings are brought in a representative capacity either on behalf of a natural person who has not reached their majority or has a disability or on behalf of a class of persons who have a common interest or on behalf of a body corporate then the Plaintiff must evidence the authority to do so.
122. A failure to do so amounts to an abuse of process as it goes to the issue of standing and sufficient interest, requirements in judicial review for a grant of leave to institute the proceedings (Kawyok v Singomat [2017] N7097 at [16]).
123. In Morauta v Pala (2016) SC1529 (Morauta) and Application by Edward Mike Jondi as General Secretary of the PNC Party [2016] SC1561 (Jondi) the Supreme Court in dealing with the standing of the respective applicants under s 18(1) of the Constitution affirmed the requirement of appropriate authority to commence the proceedings. While the proceedings did not concern judicial review, it demonstrated the importance of evidence of prior requisite endorsement or approval to commence proceedings as an issue of standing.
124. In Morauta the Court (Kandakasi, Yagi & Sawong JJ) found that the applicant had no standing on the basis that he was pursuing the Constitutional Reference under Section 18(1) of the Constitution in his capacity as the Managing Director of a foreign company. He did not have any personal interest in the subject matter in the proceedings. He was pursuing the matter in the interest of the company. He was used by the foreign company to further their corporate interest. There was no evidence of a company resolution expressly authorizing the applicant to pursue the natter on behalf of the company.
125. In Jondi the Court (Gavara-Nanu, David & Yagi JJ) reaffirmed at [16]- [17] the principles of legal capacity and standing to bring the proceedings.
126. If the applicant is a body corporate, then the evidence before the Court that the company has authorised the commencement of the proceedings on behalf of or in the name of the company is usually undertaken by way of board resolution under common seal of the body corporate as prescribed by legislation or the company constitution.
127. In Radio Taxis at [8] the learned Judge reaffirmed accepted legal principle as follows:

A company is in law a separate legal person capable of suing or being sued in its own name. Unless the law provides otherwise, the company cannot initiate legal proceedings without a duly passed resolution authorizing the company to litigate. A company that purports to litigate without a duly passed resolution to that effect lacks locus standi and such proceedings amount to an abuse of Court process.

128. Subsequent decisions of this Court in Opotio, Huon and Ramu have confirmed the soundness of these principles and have adopted and applied them.
129. These authorities did not “change or clarify the law”. That submission, respectfully, is misconceived. They did not render unlawful, by subsequent judicial decision, the Plaintiff’s failure to authorise by board resolution the institution of the consolidated proceedings. Polem has no application to this case. It concerned whether a judicial decision overruling previous judicial decisions had a retrospective effect and whether interpretation of statutory provision by the Supreme Court can render unlawful an act done under that statutory provision that was lawful, by virtue of an alternative judicial interpretation, at the time it was done.
130. The issue of want of board resolution may not have been raised in any reported decision in this jurisdiction prior to 2016, however the principles enunciated in Radio Taxis and the later authorities that affirmed the principles did not change “the rules of the game”. Nor did the principles enunciated in Radio Taxis overrule a previous judicial decision.
131. The requirement for a board resolution as evidence of the authority of a company to bring legal suit is one deeply embedded in a proper understanding of the principles of corporate law, principles which have found voice in authorities in this jurisdiction as part of the underlying law of Papua New Guinea which includes English common law and equity that existed as of 16 September 1975 (Schedule 2.2.2 of the Constitution; Section Schedule 2.6 of the Constitution; Laws Adoption and Adaptation Act 1975).
132. The requirement for such authority stems from an understanding of the legal status of a company as a separate entity and the management of its affairs by a board of directors (as is the case here, having two or more directors) who act as agents for the company with appropriate authority to bind it as provided by the company’s constitution and any relevant legislation (Foss v Harbottle [1843] EngR 478; [1843] 67 ER 189; Salomon v Salomon & Co Ltd [1897] AC 22; Odata Ltd v Ambusa Copra Oil Mill Ltd (2001) N2106; Era Dorina Limited v. Eki Investments Limited (2006) N3176 cited with approval by the Supreme Court in both Morauta and Jondi; see also s 16 of the CA).
133. While the board of directors may appoint officers to conduct the day-to-day operations of the company within their sphere of appointed responsibility, and it may be those officers who depose to affidavits in legal proceedings, unless provided in the company’s constitution or statute, it is the board of directors, not individual officers or employees, who have the legal responsibility to approve the institution of legal proceedings on behalf of the company. That decision should be formalised through a board resolution at a properly convened meeting. It is that authority that empowers the relevant company officers to then file suit and take the action necessary to prosecute it.
134. The need for such authority is obvious, and important. The directors of a company have fiduciary duties which require them to act in the best interests of the company and its shareholders at all times. Legal proceedings will commit the company to financial cost, court direction and ultimately expose the company to a court ordered determination which may include a costs order against it.
135. There is no evidence of a board resolution authorising the filing and maintaining of OS (JR) No 682 of 2013 against the Defendants including the Tenth Defendant in respect of the land subject of dispute in proceeding OS (JR) No 682 of 2013.
136. The need for such a board resolution is reinforced by the provisions of the Plaintiff’s constitution combined with a reading of relevant provisions of the CA. The provisions of the CA were in existence when the Plaintiff commenced its proceedings.
137. Pursuant to s.109 of the CA, the business and affairs of a company must be managed by or under the direction or supervision of the board of the company subject to any modification, exceptions or limitations contained in the CA or in the company’s constitution.
138. Section 109 relevantly states:

“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.

(3) Subsections (1) and (2) are subject to any modifications, exceptions, or limitations contained in this Act or in the company’s constitution.”

139. The terms “board” and “board of directors” are defined in s.108. They mean, directors of the company who number not less than the required quorum acting together as a board of directors (s.108(a)) and where the company has only one director, that director (s.108(b)).
140. I respectfully agree with David J in Huon at [18] when the learned Judge said:

As a company functions through its board, a decision to institute legal proceedings should be taken at a properly convened and constituted meeting of the board passing a resolution authorising such action. The provisions set out in Schedule 4 (Proceedings of a Company) of the Companies Act govern the proceedings of the board of a company by virtue of s.138 (Proceedings of Board) of the Companies Act which states:

“PROCEEDINGS OF BOARD.

Subject to the constitution of the company, the provisions set out in Schedule 4 govern the proceedings of the board of a company.”

141. Schedule 4 or the CA provides for the appointment of a Chairman of the board, notice and conduct of board meetings, voting and the keeping of minutes. I set it out in full:

SCHEDULE 4 – PROCEEDINGS OF THE BOARD OF A COMPANY.

Sec. 138.

Sch. 4.1. Chairman.

(1) The directors may elect one of their number as Chairman of the board.

(2) The director elected as Chairman holds that office until he dies, resigns, is prohibited from being a director of a company under Section 425, 426 or 428 or the directors elect a Chairman in his place.

(3) Where no Chairman is elected, or where at a meeting of the board the Chairman is not present within five minutes after the time appointed for the commencement of the meeting, the directors present may choose one of their number to be Chairman of the meeting.

Sch. 4.2. Notice of meeting.

(1) A director or, where requested by a director to do so, an employee of the company, may convene a meeting of the board by giving notice in accordance with this section.

(2) Not less than two days notice of a meeting of the board shall be sent to every director who is in the country, and the notice shall include the date, time, and place of the meeting and the matters to be discussed.

(3) An irregularity in the notice of a meeting is waived where all directors entitled to receive notice of the meeting attend the meeting without protest as to the irregularity or where all directors entitled to receive notice of the meeting agree to the waiver.

Sch. 4.3. Methods of holding meetings.

A meeting of the board may be held either–

(a) by a number of the directors who constitute a quorum, being assembled together at the place, date, and time appointed for the meeting; or

(b) by means of audio, or audio and visual, communication by which all directors participating and constituting a quorum can simultaneously hear each other throughout the meeting.

Sch. 4.4. Quorum.

(1) A quorum for a meeting of the board is a majority of the directors.

(2) No business may be transacted at a meeting of directors where a quorum is not present.

Sch. 4.5. Voting.

(1) Every director has one vote.

(2) The Chairman does not have a casting vote.

(3) A resolution of the board is passed where it is agreed to by all directors present without dissent or where a majority of the votes cast on it are in favour of it.

(4) A director present at a meeting of the board is presumed to have agreed to, and to have voted in favour of, a resolution of the board unless he expressly dissents from or votes against the resolution at the meeting.

Sch. 4.6. Minutes.

The board shall ensure that minutes are kept of all proceedings at meetings of the board.

Sch. 4.7. Unanimous resolution.

(1) A resolution in writing, signed or assented to by all directors then entitled to receive notice of a board meeting, is as valid and effective as if it had been passed at a meeting of the board duly convened and held.

(2) Any such resolution may consist of several documents (including a document sent or received by facsimile machine, telex, computer or other electronic device that provides that document, or a copy of that document, to a person in a permanent form or image, including an electronic or magnetic form or image) in like form each signed or assented to by one or more directors.

(3) A copy of any such resolution shall be entered in the minute book of board proceedings.

Sch. 4.8. Other proceedings.

Except as provided in this Schedule, the board may regulate its own procedure.

142. While there is no express delegation to directors in the CA of the power to institute legal proceedings and instruct lawyers on behalf of the company, in line with the directors duties to act with skill, care and diligence and their overriding fiduciary responsibilities, and the potential for personal liability, these rules of procedure ensure that any decision to institute legal proceedings is taken at a properly convened and constituted meeting of the board, by the directors passing a resolution authorising such action, the resolution then duly recorded in the minutes.
143. In the present case the Plaintiff has a constitution which although unnumbered is annexed to the Affidavit of Philomina Nagari filed 1 August 2025.
144. It provides that:
     1. the business of the company must be managed by or under the direction or supervision of the Board (2.1);
     2. notwithstanding 2.1, a meeting of the shareholders may pass a resolution relating to the management of the company (2.2(b);
     100. a resolution relating to the management of the company passed by a meeting of shareholders shall not be binding on the Board (2.3);
     4. the Board may delegate its powers to a Committee of Directors, a Director or employee of the company or any other person, any one or more of its powers other than those specified in Schedule 3 of the Act (2.4).
145. While, again, there is no specific provision in the constitution providing for the meeting of directors of the board, consistent with the business of the company being managed by or under the direction or supervision of the board of the Plaintiff as required by 2.1 of the constitution and the demands of good corporate governance Schedule 4 of the CA would apply to regulate the meetings of directors of the board for the purposes of passing a resolution by the board to bind the company (Opotio; Huon).
146. The onus is on the Plaintiff company to demonstrate that its board has a duly passed resolution authorising the company to institute litigation.
147. There is no evidence of an express resolution by the directors who were the mind and will of the Plaintiff company at the relevant time sitting as a board of the company to pass a resolution pursuant to the company constitution and Schedule 4 of the CA to file proceedings in the name of the company.
148. Accordingly at the time leave was granted the Plaintiff lacked standing, a requirement for leave. In consequence the grant of leave was defective, the proceedings incompetent and an abuse of process and should be dismissed.
149. The provisions of the CA referred to by learned Counsel for the Plaintiff, namely sections 17 to 20 do not advance matters.
150. Section 17 which relates to the capacity and powers of the company simply provides that subject to the CA and to any other law, a company has full capacity to carry on or undertake any business or activity, do any act, or enter into any transaction and to that end full rights, powers, and privileges. Further 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. There is no dispute that the Plaintiff had the capacity to institute the consolidated legal proceedings. The issue is the lack of evidence of its authority to do, the authority of the board with legal responsibility to manage the company’s affairs.
151. While the Plaintiff raises various complaint, it ignores how a company, having exercised its powers to initiate legal proceedings, then actions that decision, a board resolution being the mechanism for confirmation of the company decision, one recognised in its own constitution, albeit in the context of “a resolution relating to the management of the company passed by a meeting of shareholders” (2.3).
152. Section 18 concerns the validation of actions taken by the company by providing inter alia that no act of a company and no transfer of property to or by a company is invalid merely because the company did not have the capacity, the right, or the power to do the act or to transfer or take a transfer of the property and the fact that an act is not, or would not be, in the best interests of a company does not affect the capacity of the company to do the act.
153. Sections 19 and 20 are provisions that concern the company’s dealings with other persons and that a person is not affected by, or deemed to have notice or knowledge of the contents of, the constitution of, or any other document relating to, a company merely because the constitution or document is registered on the register; or available for inspection at an office of the company.
154. These are provisions for the protection of third parties dealing with a company by precluding it from denying the authority of its officers unless the third party had actual knowledge of the irregularity. They do not address the issue at hand, namely the proper authorisation of legal suit commenced by the company.
155. Having concluded that the Plaintiff lacked standing by want of evidence of proper authority in the form of a board resolution to institute the relevant legal proceedings the question then arises, as to whether a retrospective board resolution by the Plaintiff authorising the institution and continuation of the consolidated proceeding, is an effective cure.
156. Each case must turn on its own facts and circumstances and merit. To my mind however, on the facts of the present case, to do what the Plaintiff now asks the Court to do, namely give retrospective effect to its board resolution, would be highly irregular.
157. It would do the very thing of which the Plaintiff lays complaint, albeit in a different context, and that is to “change the rules of the game”. Equity aids the vigilent. It aids those who are attentive to the protection of their rights. It is not the Court who prepares the documents before it, the Plaintiff, here, legally represented throughout years of legal proceeding by two different law firms.
158. Relevantly, there is no express provision in the CA or the constitution of the company giving the company power to retrospectively pass a resolution to validate a prior decision or action taken by the Plaintiff, here a different board, validating the actions of an earlier board. The Court accepts the submissions on behalf of the Tenth Defendant to this effect.
159. While in Huon, David J observed at [26] that where a company is a plaintiff in proceedings that have not been properly authorised, it is possible to retrospectively validate the proceedings with subsequent ratification under the power of management accorded to the board of a company under s.109 of the CA he went on to say [27] – [28]:

27. However, there is another argument that nowhere in the Companies Act or any other law including the National Court Rules can there be found any provision that expressly provides that the existence of board resolution as among the mandatory requirement for the company to institute legal proceedings. The plaintiff advances this proposition.

28. A qualification to that observation, in my view, is that where it is raised in a defence, eg, under Order 8 Rule 14 (Matters for specific pleading) of the National Court Rules or generally and it is taken issue of by the plaintiff company, then the plaintiff is taken to the task of proving that such board resolution authorising the institution of litigation is in existence.

160. The Court must also be vigilant in ensuring that its processes are safeguarded and not abused.
161. I have concluded that what the Plaintiff seeks to do is an abuse of process. It seeks the Court’s indulgence to fix something of which it should have been aware, prior to the institution of the consolidated proceeding.
162. In conclusion and addressing the specific submissions on behalf of the Plaintiff:
     1. The Court does not accept that the legal principles outlined in Radio Taxis, Morauta and Jondi has no application to the consolidate proceeding.
     2. The Court does not accept that the principles enunciated in Radio Taxis, Huon and Opotio with respect to the requirement for a board resolution to authorise the filing of proceedings is not sound law and should not be followed. Huon, the most recent National Court decision, involved, respectfully, a careful analysis, and approved the decisions on point of Radio Taxis and Opotio at [21] to [25].
     100. If I was wrong in in Ramu Nico in concluding that the decision in Radio Taxis was binding authority, it matters not. The principle enunciated at [8] of Radio Taxis is correct law emerging from time honoured principles of corporate law which find voice in the CA. The fact that the learned Judge found at [14] that leave to review should be granted because the Supreme Court may conclude that notwithstanding a want of board resolution, the application for leave in the lower Court ought to have succeeded because the Plaintiff had an arguable case, a requirement for a grant of leave, does not suggest that the principles enunciated by him at [8] were wrong.
     4. The Court does not accept that the proceedings were validly commenced, the plaintiff lacking standing at the time of institution of the proceedings for want of cogent evidence of proper authority to bring the proceedings by those authorised to provide it at the time.
     5. The submission that the Plaintiff’s locus standi in these proceedings “arises from its status as a registered company with a direct and vested interest in the administrative decisions that are the subject of review” ignores the need to file the proceedings consistent with the company’s internal procedures governing its management, its constitution where relevant and any governing legislation. A consideration of a class or representative action highlights the point. In a class action the intended plaintiffs may have a direct and vested interest in the administrative decision they seek to review. However, they each must be named in the originating process, each must give their specific instructions to their lawyers to act for them and each member of the group must authorise the plaintiff to file proceedings on their behalf (Mali v The State [2002] SC690; Malewo v Faulkner [2009] SC 960; Bearasi v Konekaru Holdings Ltd [2010] N4189). A failure to do so renders the proceedings incompetent not because the Plaintiffs have no interest in or connection to the decisions they seek to challenge but because they have failed to meet the procedural requirements to authorise the legal suit at the outset, which failure impacts their standing.
163. This ground for dismissal is upheld.

Whether the Plaintiff’s failure to comply with directional orders issued consistent with Order 16 Rules 13(6) and (7) of the NCR to set the matter or the judicial review application down for hearing within a reasonable time.

164. Order 16 Rule 13 (6) and (7) provide:

6. Directions Hearing.

(1) The Registrar shall give Notice of the Directions Hearing in the form in Schedule A.

(2) At the Directions Hearing, where parties are represented by a lawyer, the lawyer must be familiar the matter.

(3) A person who is served with the Notice of Motion is entitled to attend the Directions Hearing.

(4) At the Directions Hearing, the Judge may consider and determine and issue directions or orders for the prompt hearing of the application, amongst other things, the following:

a. Question of legal representation.

b. Identification of persons served or who ought to have been served with the Notice of Motion.

c. Joinder of persons served with the Notice of Motion as parties to the proceedings.

d. Filing and service of affidavits by the Respondents.

e. The grounds of review.

f. Amendment of grounds of review.

g. Identification of legal issues.

h. Statement of agreed and disputed facts.

i. Identification of factual issues and manner of proof of disputed facts.

j. Provision of records including decision and reasons for decision by the Clerk or Registrar of the Court or Tribunal or statutory authority which made the decision.

k. Issue of notices for discovery, notice to admit facts, exchange of interrogatories, notices under Evidence Act, etc.

l. Issue of witnesses summonses.

m. Filing of extract of submissions.

n. Compilation of a Review Book.

o. Fix a date for the Pre- hearing Conference to take place within seven (7) days there-from.

7. Review Book.

(1) The Applicant or his/her lawyer is responsible for compiling the Review Book.

(2) The Respondent or his/her lawyer is responsible for ensuring that the decision the subject of the review and other documents considered relevant for purpose of the review are included in the Review Book.

(3) The Clerk, Registrar or the officer responsible for keeping the records of the tribunal or public authority which made the decision shall certify the documents referred to.

The certification shall be as follows:

"I............. , Clerk/Registrar of the............................. , hereby certify that I have examined these documents with the original and certify that they are true copies.

Dated this................. day of ...................2005.

........................

Clerk/Registrar.

165. It is submitted on behalf of the Tenth Defendant that judicial review proceedings are time sensitive and that consistent with Orders of this Court made on 18 September 2017, 8 November 2018 and 7 March 2022 (the orders) the Plaintiff has failed to take the following steps for the purposes of preparing the matter for hearing:
     1. Identification of legal issues
     2. Statement of agreed and disputed facts
     100. Identification of factual issues and manner of proof of disputed facts
     4. Notices under Evidence Act
     5. Compilation of Review Book
166. It is submitted that there is a lack of seriousness by the Plaintiff to set the matter down for trial within a reasonable time notwithstanding the Plaintiff seeking an order for certiorari to claim back the land the subject of review. Further there is no evidence of reasonable steps taken by the Plaintiff to comply with the court directions as issued and no actions taken to set the matter down for hearing.
167. The orders provided inter alia with respect to the consolidated proceedings as follows:
     1. The order of 18 September 2017 provided for the filing and service of affidavits by 9 October 2017, compilation of a Review Book by 13 October 2017 and its filing by 25 October 2017 with a pre-trial conference listed for 30 October 2017;
     2. The order of 8 November 2018 provided for the compilation of a Review Book by the Plaintiff by 25 October 2018 and its filing within fourteen (14) days of the order, mention on 11 December 2028 for allocation of a hearing date with any applications to be filed and served by 22 November 2018;
     100. The order of 7 March 2022 provided for the preparation of and filing by the Plaintiff of a Statement of Agreed and Disputed Facts by 18 April 2022, filing of additional affidavits by 16 May 2022, compilation by the Plaintiff of review Book by 6 June 2022 and its filing by 4 July 2022.
168. The Plaintiff contends that:
     1. The discretion to dismiss should be used sparingly
     2. There were a number of appeals, at least 3 of which 2 resulted in reinstatement of the consolidated proceedings and the convoluted history demand a substantive hearing.
     100. No trial date has been fixed since the matter was relisted on 1 July 2025 for a directions hearing following the Supreme Court decision on 29 May 2025 remitting the consolidated proceeding for directions hearing.
     4. The Plaintiff filed its formal Notice of Motion on 24 July 2025 to amend its pleadings and substantive motion.
     5. The Plaintiff should be given the opportunity to be heard on its pending amendment application pursuant to s 59 of the Constitution, the Defendants not precluded from raising these matters in the event the Plaintiff’s amendment is refused.
     6. There is a reasonable explanation for the delay in prosecuting the consolidated proceedings.
     7. The Tenth Defendants Motion does not mention the date and time the orders were alleged to have ben breached.
     8. None of the reasons advanced constitute a proper ground for dismissal.
169. While there is an attractiveness to the Plaintiff’s submission, veiled under the guise of s 59 of the Constitution, that it should be afforded an opportunity to be heard on its Notice of Motion to amend first, it is a submission that is readily rejected because:
     1. No trial date could be fixed since 1 July 2025 because the matter is not ready for final hearing, the Plaintiff seeking to amend its pleading and Notice of Motion for substantive relief.
     2. The Plaintiff’s Notice of Motion to further amend and/or a convoluted history and/or a long history does not individually or together suggest that the matter should be put on hold pending a determination of that motion.
     100. The Defendants ability to raise at another hearing issues that go to the motion does not in itself suggest prejudice. Even a short delay can create a prejudice to the other side, where some of the Defendants hold title to the land in dispute.
     4. There is no explanation advanced as to why the Plaintiff could not have addressed on this application reasonable excuse for delay if it was asserting one, as appeared to be the case on [140] of written submissions. Having filed 25 pages of written submissions the Court should not be left in suspense. Some explanation was called for, including why three orders for the preparation and filing by the Plaintiff of a Review Book over the course of five (5) years was not complied with and is still not complied with. At 3(f) to (k) of its Motion the Plaintiff now seeks a suite of orders to do with the preparation and filing by it of a Review Book by 24 November 2025, eight (8) years after it was first ordered to do so. The number of appeals may be some explanation for some of the delay in litigation that has spanned 12 years. It does not, however, without cogent evidence, a complete explanation for a delay of that length.
     5. Directions made by the Court in the form of Orders to progress a matter to a hearing are not guidelines or optional suggestions. They are designed to manage the often complex business of a busy Court in the interests of justice. Where litigants are required to meet court ordered scheduling and have not and where the Plaintiff affords no reasonable excuse for its non-compliance with directions made, the Court is entitled to conclude that there is no reasonable explanation.
170. I otherwise rely upon earlier discussion relevant to this consideration.
171. In conclusion I am not satisfied that the Plaintiff has provided a reasonable explanation for its non-compliance with Court orders and for the delay in setting the consolidated proceedings down for trial.
172. The Court is unable to conclude that the Plaintiff’s right to be heard on its Motion to amend or the other reasons advanced individually or collectively persuasively answer why the consolidated proceedings should not be struck out for failure to comply with orders of this Court designed to progress the matter to a final hearing within a reasonable time and thus its failure to set the matter down for hearing with the level of due diligence the Court expects from all litigants who seeks its assistance.
173. This ground for dismissal is upheld.

CONCLUSION

174. For the reasons given the Court upholds each of grounds for dismissal. It flows that the consolidated proceedings should be dismissed.
     

ORDERS

175. I make the following orders:
     1. Pursuant to Order 16 Rule 13(13)(2)(a), the consolidated proceedings are dismissed for being incompetent and/or otherwise an abuse of court process.
     2. The Plaintiff pay the Tenth Defendant’s costs of the proceedings on a party/party basis to be agreed or taxed.
     100. Time to abridge.

________________________________________________________________
Lawyers for the plaintiff: Geroro Lawyers
Lawyers for the tenth defendant: Jema Lawyers