N9572
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 367 OF 2020
BETWEEN:
VEHO MOHUKULE AND JAMES AITAPO on their own behalf and those of families stated in Clause 4.1(c)(iv) of the MEDIATED AGREEMENT attached to the CONSENT COURT ORDER ISSUED BY JUSTICE NEILL ON 3 NOVEMBER 2016
Plaintiffs

AND:
SETH HUKE as the Chairman of SEHAZUHA LAND GROUP INCORPORATED
Defendant

Goroka: Mugugia, AJ  
2022: 5th & 8th April
PRACTICE AND PROCEDURE – whether the procedural requirements for suing in a representative action have been met by the Plaintiffs - legal requirements for suing in a representative action - National Court Rules, Order 5, Rule 13 - Plaintiffs failed to satisfy the requirements – proceedings dismissed.  

Cases Cited:

Maiva v. Mari (2012) N4696
Mali v. Independent State of Papua New Guinea (2002) SC690
Malewo v. Faulkner (2009) SC960

Counsel:

B. Koningi, for the Plaintiffs 
K. Pilisa, for the Defendant 
.
DECISION  

8th April, 2022 
1. MUGUGIA, AJ: The Plaintiffs filed a motion on 18 March 2022, seeking an order to stop the Defendant from withdrawing from the Sehazuha Land Group Incorporated’s bank account. The Defendant is the chairman and the signatory. The motion was listed for hearing on 29 March 2022. The Defendant’s lawyer objected to the motion proceeding on that date on the basis that the Plaintiffs’ action is a class action, and there is no authority form signed by the principal Plaintiffs Veho Mohukule and James Aitapo. This renders the proceedings incompetent. 

2. Since the issue raised went to the competency of the proceeding, I adjourned the matter to allow the Plaintiffs’ lawyer to obtain instructions from his clients, and for the parties’ lawyers to come up with submissions to address the Court on the issue of whether the Plaintiffs have met the procedural requirements for a representative action. I heard submissions by Counsel on 5 April 2022.  

3. The named Plaintiffs filed their Originating Summons on 3 November 2020 claiming the following substantive relief:
“(i) Pursuant to Clause 8.3 of the Mediated Agreement between the parties being the subject of Consent Orders of the Court made on 3 November 2016 in the proceedings WS No. 1657 of 2011, the defendant herein be ordered to provide a statement of account about how much money the Sehazuha Incorporated Land Group (ILG) has so far received in the way of benefits for its members pursuant to the said Mediated Agreement.
(ii) Further to the orders sought above that the Defendant be ordered to explain or provide reasons why the Plaintiffs have not received their 40% share of benefits moneys in accordance with Clause 4(1)(c)(iv) of the said Court endorsed Mediated Agreement.
(iii) Costs.
(iv) Any other orders or directional orders as the Honourable Court deems fair and 	just.” 

ISSUE 

4. The issue for determination is whether the Plaintiffs have met the procedural requirements of Order 5, Rule 13 of the National Court Rules for a representative action. 

THE LAW

5. In a class action, the principal plaintiff must obtain consent from all the plaintiffs in writing before the proceeding is instituted: Maiva v. Mari (2012) N4696.
6. In Mali v. Independent State of Papua New Guinea (2002) SC690, the Supreme Court said:
"... in all actions or proceedings of a representative nature, all the intended plaintiffs must be named and duly identified in the originating process, be it Writ of Summons, Originating Summons or Statement of Claim endorsed on a writ. In this respect, pursuant to the Rules, each and every intending plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them. There are good reasons for this, one being where costs of the litigation are concerned, if awarded against the plaintiffs. Some of the problems or consequences in a representative action are anticipated in the various sub-rules under O. 5, r. 13 NCR (Representation: Current interests)."
7. The Supreme Court summarised the procedural requirements for commencement of proceedings in a representative capacity in Malewo v. Faulkner (2009) SC960. They are: 
	(i) all intended plaintiffs must be named in the originating process; 
(ii) each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them; and 
(iii) any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorised by them to file proceedings as a class representative.

PARTIES’ SUBMISSIONS

Plaintiffs’ Submissions

8. Mr Koningi for the Plaintiffs relied on his own Affidavit filed on 4 April 2022. He submitted that the matters to be raised by submissions are contained in the Affidavit. Annexed to this affidavit and marked as Annexure “A” is a letter dated 2 April 2022 from the Sehazuha Clan to Mr Koningi. It was signed by the principal Plaintiffs in this proceedings and six other people. In essence, this letter makes a request to Mr Koningi to seek an interim order to put a stop for their land group BSP bank account, and file a court summons for contempt.

9. Mr Koningi relied on this letter, and asked the Court to accept this letter as sufficient authority for the Plaintiffs in this proceedings for purposes of compliance with the requirements for representative actions under Order 5, Rule 13 of the National Court Rules.

10. Mr Koningi agreed that his clients’ action is a representative action, and conceded that his clients did not comply with the procedural requirements for a representative action. He referred to the Supreme Court case of Mark Philip & Others v. Ken Tiliyago, SC1783, and submitted that even if the procedural requirements are not complied with, the Court has a discretion. The proceedings is maintainable by the lead Plaintiffs.

Defendant’s Submissions 

11. The Defendant relied on these affidavits:

	11.1. Affidavit of Hiso Lokukulo filed on 1 April 2022; and  

	11.2. Affidavit of Seth Huke filed on 7 May 2021. 
	
12. On the issue of whether the proceedings are incompetent, Mr Pilisa’s submissions were as follows: 

•	The Plaintiff has commenced this proceedings representing those families stated in Clause 4.1 of the Mediated Agreement made under a Consent Order on 3 November 2016 in an earlier proceeding (WS No. 1657 of 2011). A copy of the Mediated Agreement is annexed to the Affidavit of Seth Huke filed on 7 May 2021. The parties to the Mediated Agreement under Clause 4.1(c)(iv) are Mokule, Aitapo, Povae, Mohoe, parts of Jasinaha under Benny, Letave, Vonase, parts of Lokukulo under Robert. Veho Mohukule and James Aitapo represent several families and clan members. The Plaintiffs have not obtained the consent of their group of families they purport to represent.

•	In the case of Peter Potape v. Gigira Laitepo Palamanda Association Incorporated & Others, (2021) N9233, it was held that the practice and procedural requirements of Order 5, Rule 13 were:

(i) All intending Plaintiffs must be named and  properly identified in the originating process. 

(ii) Each plaintiff must give specific instructions evidenced in writing to the representative and to the lawyer to act.

(iii) Authorisation to representative and lawyer must be annexed to the originating process at commencement of suit. 

•	Order 5, Rule 13 of the National Court Rules has not been complied with. Failure to comply with procedural requirements means the Plaintiffs have no standing. No cause of action is disclosed, and is an abuse of process. Here, the Plaintiffs have no standing. There is no proper cause of action. The proceedings are futile from commencement, incompetent and should be dismissed. 

•	The affidavit relied on by the Plaintiffs is sworn by their lawyer. It should have been sworn by the Plaintiffs. 

CONSIDERATION
13. It is clear from the documents before me that this is a representative action, and the principal Plaintiffs are suing in a representative capacity. 
14. Before the matter returned to Court on 5 April 2022 for the hearing on submissions on the issue posed by the Court, the Defendant filed a motion on 1 April 2022, seeking an order for dismissal of the proceedings for the reason that the lead Plaintiffs failed to meet the requirements of a class action under Order 5, Rule 13 of the National Court Rules. I noted that no jurisdictional basis for dismissal like Order 12, Rule 40 of the National Court Rules was cited in the Defendant’s motion filed on 1 April 2022. I still heard the parties’ submissions on the issue of whether the Plaintiffs have met the procedural requirements of Order 5, Rule 13 of the National Court Rules for a representative action because I had adjourned the matter on 29 March 2022 to 5 April 2022, and made an order for the parties to address me on this issue. On 5 April 2022, the parties’ lawyers presented their submissions on the issue posed by the Court.  

15. I have considered the materials before me, the law applicable, and the parties’ submissions. I am not satisfied that the Plaintiffs have met the procedural requirements of Order 5, Rule 13 of the National Court Rules for a representative action. I will therefore dismiss the entire proceedings. I set out my reasons for decision below. 
•	There is no evidence that the principal plaintiffs Veho Mohukule and James Aitapo obtained consent from all the plaintiffs in writing before instituting this proceedings. 
•	There is no schedule of names attached to the originating summons filed on 3 November 2020. 
•	All the intended plaintiffs are not named in the originating process.  
•	There is no evidence that each and every intended person who the principal Plaintiffs purportedly represent have given specific instructions evidenced in writing to their lawyer Mr Koningi to act for them.  
•	The principal plaintiffs Veho Mohukule and James Aitapo in whose names this proceeding was commenced did not produce an authority to the court to show that they were authorised to file proceedings as class representatives. 
•	The Plaintiffs did not provide a written authority or authorities which demonstrate that the Plaintiffs’ lawyer Mr Koningi was instructed by each person to act for them. 
•	Clause 7.3 of the Mediated Agreement which is Annexure “A” in the Defendant’s affidavit filed on 7 May 2021 states that “no member of the Clan shall issue court proceedings unless that person first secures through a proper meeting of the clan and its membership full and unanimous approval.” There was no evidence before me showing that the principal Plaintiffs got this approval to institute this proceedings.
•	I am not satisfied that the Plaintiffs have satisfied the necessary representative action  requirements referred to in Mali v. Independent State of Papua New Guinea (supra), Malewo v. Faulkner (supra), and Maiva v. Mari (supra).
•	I am not satisfied that the matter is properly before this Court.

CONCLUSION

16. The Court has inherent powers to control proceedings that come before it. Where the matter is not properly before the Court, the Court can dismiss the entire proceedings. The current proceedings is not properly before this Court. I will therefore dismiss the entire proceedings.  

FORMAL ORDERS:

17. These are the formal orders of the Court:

1. The Originating Summons filed on 3 November 2020 is dismissed in its entirety. 

2. The Plaintiffs shall pay the Defendant’s costs of the proceedings. Costs are to be taxed if not agreed. 

3. Time for entry of these orders is abridged to the date and time of settlement of these orders by the Registrar which shall take place forthwith.

The Court orders accordingly.

________________________________________________________________
B. Koningi: Lawyer for the Plaintiffs 
K. Pilisa: Lawyer for the Defendant