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Evera v Samson [2022] PGNC 213; N9642 (3 June 2022)

N9642

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 196 OF 2019

BETWEEN:
ROY EVERA, OBE PRESIDENT OF PURARI DEVELOPMENT ASSOCIATION INCORPORATION FOR AND ON BEHALF OF IRARE, KIKORI, KAIMARE, KORAVAKE, PAUAEA, VAIMURU, IPILO, AND LAVIVANA (MAIPUA) TRIBES OF BAIMURU SUB-DISTRICT, GULF PROVINCE
Plaintiff

AND:
BENJAMIN SAMSON, REGISTRAR OF TITLES, DEPARTMENT OF LANDS AND PHYSICAL PLANNING
First Defendant

AND:
HON. JUSTIN TKATCHENKO, MINISTER LAND AND PHYSICAL PLANNING
Second Defendant

AND:
OSWALD TALOPA, ACTING SECRETARY, DEPARTMENT OF LANDS AND PHYSCIAL PLANNING
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

AND:
MANOAH KARARA
Fifth Defendant

AND:
HON. KERENGUA, MINISTER FOR PETROLEUM AND ENERGY MINISTER
Sixth Defendant

AND:
DAVID MANAU, SECRETARY FOR PERTOLEUM AND ENERGY
Seventh Defendant

AND:
TOTALE E P LIMITED
Eight Defendant

AND:
AUMAKE NAIRU ORUMAKO ILG
Nineth Defendant

AND:
IARE TRIBE AND 43 ILGs
Tenth Defendant

AND:
AMOS PIRIKA AKO
Eleventh Defendant

Waigani: Dingake J
2022: 17^th March, 11^th, 14^th & 16^th April, 2^nd, 10^th May, 3^rd June

JUDICIAL REVIEW - Practice and procedure - Representative action - requirements necessary to pursue class action.

Case Cited:

Eliakim Laki and 176 Others v Maurie Alaluku and Others (2002) N2001
Simon Mali v The State [2002] PNGLR 15

Counsel:

Mr. Otto Dekas, for the Plaintiff
Mr. Max Tukuliya, for the First, Second, Third, Fourth, Sixth and Seventh Defendants
Mr. Harvey Maladina, for the Fifth Defendant
Mr. Allan Mana, for the Eight Defendant
Mr. Ruse Tamarua, for the Ninth Defendant

03^rd June, 2022

1. DINGAKE J: This is my ruling with respect to an objection raised at the commencement of this trial by the Fifth Defendant that the Plaintiff has no authority to bring a representative action on behalf of the tribes reflected in the citation of these proceedings.
   
2. The Plaintiff in his pleadings pleads that he brings these proceedings on his own behalf and on behalf of the nine (9) tribes of the Baimuru Sub District, Gulf Province. In the Originating Summons the Plaintiff seeks to review and set aside, inter alia, a decision of the First Defendant advertising a Notice of Summons to surrender and cancel Special Agricultural and Business Lease (SABL) over Portion 8C Volume 88 Folio 132, Portion 20 Milinch, Moiwatu Fourmill Kikori, Gulf Province pursuant to Section 160 (1) of the Land Registration Act.
   
3. It is not in dispute that the said SABL is in the name of Purari Development Association incorporation (PDA). It was granted to the said Association on the 15^th of February, 2011. It is also instructive that although the PDA was at all material times hereto the title holder of the property described above, and that the PDA has the right to sue or be sued in its own name, it is not a party to these proceedings.
   
4. The 5^th Defendant’s objection is that the Plaintiff has no standing and or authority to represent the tribes reflected in the citation of the proceedings and that in the absence of the required authority these proceedings are liable to be dismissed as an abuse of court process.
   
5. Learned Counsel for the 5^th Defendant, Mr. Harvey Maladina relies on the provisions of Order 5 Rule 13 of the National Court Rules (NCR) and the case of Eliakim Laki and 176 Others v Maurie Alaluku and Others (2002) N2001, for his submission that any person who claims to represent others must produce an authority to the court to show that he is authorized to file proceedings as class action or on behalf of the group he purports to represent.
   
6. The Plaintiff on the other hand argues that he was granted leave by this court because he had demonstrated that he has standing. Mr. Otto Dekas, learned Counsel for the Plaintiff conceded the authority of Simon Mali v The State (2002) PNGLR 15 that the Plaintiff in any cause of action cannot purport to act for and on behalf of other Plaintiffs, unless consent, in writing has been clearly and specifically given to the Plaintiff.
   
7. Notwithstanding the above concession, Mr. Otto Dekas, learned Counsel for the Plaintiff, contended that in this case the authority of Simon Mali does not apply, because the Plaintiff filed these proceedings in his capacity as the incumbent president of PDA and does not need direct and specific consent of each landowner tribe or clan because such authority was given to the PDA by various tribal leaders, chiefs and other leaders by first becoming members of PDA and executing a Memorandum of Agreement.
   
8. It is trite learning that any person who claims to represent a group of persons must produce an authority to the court that clearly and specifically authorizes him or her, to bring proceedings on behalf of the party he or she purports to represent. The cases of Simon Mali and Eliakim Laki and 176 others referred to above are clear on the above requirement.
   
9. In this case, Mr. Otto Dekas, learned Counsel for the Plaintiff, despite this court adjourning briefly, for the sole purpose of allowing him to identify the said express authority from the 9 tribes authorizing the Plaintiff to bring these proceedings on their behalf failed to do so. I searched for such authority and found none.
   
10. I am alive, of course, to the submission by Mr. Otto Dekas that in the present case such authority is not necessary because the Plaintiff filed these proceedings in his capacity as the president of PDA and therefore does not need direct and specific consent of each tribe and or that such authority is not needed as it was given when the tribes joined PDA. I do not agree with these submissions. The law requires any person claiming to represent anyone to prove that he or she has authority to represent the persons he claims to represent. Mr. Otto Deka’s submission is not helped by the fact that PDA is not even a party to these proceedings.
    
11. Towards the end of the trial, and after the court adjourned briefly to allow learned Counsel for the Plaintiff to identify the authority given to represent nine (9) tribes as per the pleadings, Mr Otto Dekas, from the bar prayed the court to exercise its discretion in terms of Section 155(4) of the Constitution and allow the Plaintiff to amend its pleadings to make sure that the Plaintiff represents the nine (9) tribes through PDA.
    
12. It is trite law that every exercise of discretion by a court must be exercised judiciously on good grounds and not arbitrarily.
    
13. I have considered whether I should exercise the discretion as prayed by Mr. Otto Dekas, learned counsel for the Plaintiff. Firstly, the application for the court to exercise its discretion as prayed was made from the bar and was not supported by any affidavit that I could consider and apply my mind accordingly.
    
14. In the absence of any Affidavit material upon which my discretion should be exercised I decline to do so. In the absence of such supporting material, in Affidavit form, the exercise of the discretion would be arbitrary.
    
15. In all the circumstances of this case, I am satisfied that the Plaintiff lacks standing to represent the 9 tribes he purports to represent in this litigation, and that in consequence, these proceedings amount to an abuse of court process and are liable to be dismissed.
    
16. In the result the Plaintiff’s proceedings are dismissed with costs, such costs to be agreed or taxed.

_______________________________________________________________
Ogenson Lawyers: Lawyer for the Plaintiff
Office of the Solicitor General: Lawyer for the First, Second, Third, Fourth, Sixth & Seventh Defendants
Young & William Lawyers: Lawyer for the Fifth Defendant
Corrs Chambers Westgarth: Lawyer for the Eight Defendant
Lomai & Lomai Attorneys: Lawyer for the Nineth Defendant