N10409

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 16 OF 2022

BETWEEN:
VINCE MARINDUO, President Kimbe Market Vendors & Growers Association Inc.
First Plaintiff

AND:
KIMBE MARKET VENDORS & GROWERS ASSOCIATION INC.
Second Plaintiff

AND:
ELOI LONGSEN, UN Women Representative
First Defendant

AND:
ANGELA MALELKIT
Second Defendant

AND:
IAN O’HANLON, Chairman WNBP Market Authority Board
Third Defendant

AND:
WEST NEW BRITAIN PROVINCIAL MARKET AUTHORITY BOARD
Fourth Defendant

AND:
TECHNICAL WORKING GROUP OF KIMBE MARKET REDEVELOPMENT PROJECT
Fifth Defendant

AND:
WEST NEW BRITAIN PROVINCIAL EXECUTIVE COUNCIL
Sixth Defendant

AND:
WEST NEW BRITAIN PROVINCIAL GOVERNMENT
Seventh Defendant

Kimbe: Numapo J
2023: 23rd June & 20th July

 CIVIL PRACTICE AND PROCEDURE – Declaration Orders (O4 r 2) NCR – Declaration of a right – Proper and tangible interest - Discretionary remedy - Requirement for seeking declaratory orders (O 4 r 2 (3) (a) of NCR – Interim injunctions (O12 r1) and s.155 (4) of   the Constitution – Sufficient interest - locus standi – Declaratory Orders refused.

Case Cited:
Papua New Guinean Cases

Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No.2) [1988-89] PNGLR 425
Placer Dome (PNG) Ltd v. Yako (2011) N4691
Independent State of Papua New Guinea v. Central Provincial Government (2009) SC977
Dr. Onne Rageau v. Kina Finance Ltd (2015) N6175
National Fisheries Authority v. New Britain Resources Development Ltd (2009) N4068
Ere v National Housing Corporation (2016) N6515 
Pius Pundi v. Chris Rupen (2015) SC1430 
Leto Darius v Commissioner of Police [2001] 147. N2046
Kombati v Singin [2004] PGNC 85; N2691
Ken Mondiai & Ors v Wawoi Guavi Timber Company Ltd (2007) SC886) 
Steamships Trading Company Ltd v Minister for Lands and Physical Planning [2000] PGNC 11; N1959 
Dawidi v Jacob [2001] PGNC 130; N2083
Pius Saurio & Ors v Vincent Dau & Ors [2021] N9164
Tarsie v Ramu Nico Management (MCC) Ltd [2010] PGNC 75; N3960 
Medaing v Ramu Nico Management (MCC) Ltd [2010] PGNC 149; N4127

Overseas Cases

Adam Brown Male Fashions Pty Ltd v Philip Morris Inc.  (1981) 148 CLR 170
Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438

Counsel:

Mr. D. Kari, for the Plaintiffs
Mr. M. Kuma, for the Fourth, Fifth, Sixth and Seventh Defendants

DECISION
20th July, 2023

1.     NUMAPO J: The plaintiff filed an application pursuant to Order 12 Rule 1 of the National Court Rules (NCR) and Section 155 (4) of the Constitution seeking declaratory and restraining orders that a meeting held on 24 January 2023 by the defendants in which the Second Defendant was elected as President of the Kimbe Market Vendors and Growers Association Inc.(hereinafter ‘Association’) was unlawful, null and void. 
2.    Plaintiff sought and was granted the interim injunctions on 21 April 2023 against the defendants especially the second defendant, effectively restraining her from holding herself out as the president and legitimate representative and conducting business dealings or transactions for and on behalf of the Association pending the determination of the substantive proceedings. The interim injunction was granted based on a notice of motion filed by the plaintiff on 9 February 2023.  The matter was made returnable for inter partes hearing at a later date. 
3.     Pending inter partes hearing, on 14 June 2023 the plaintiff filed contempt proceedings pursuant to Order 14 Rule 42 (1) of NCR and Section 163 (2) of the Constitution against the defendants alleging that the defendants breached the orders of the interim injunction. However, Counsel representing the plaintiff informed the Court that this motion will be dealt with later at an appropriate time. The only matter for deliberation before the court was the interim injunctions made returnable.
4.     On 23 June 2023, the matter returned for inter partes hearing in which the parties were directed to file and serve their respective written submissions by no later than 29 June 2023 and for the Court to make a ruling based on submissions along with the supporting affidavits and other documents that have been filed. Defendants have filed and served its written submissions by the given deadline whilst the plaintiff has not filed any submission. The only submission before the court is that from the defendants.

A.	BACKGROUND
5.     This is a case involving different groups seeking to have representation on the West New Britain Province Market Authority Board, a body established under the West New Britain Provincial Market Authority Act 2021 (herein ‘Act’) that regulates, controls and provides an oversight responsibility over all markets within the province. The specific functions of the Authority is set out under section 5 of the Act. 
6.     Plaintiff registered an Association called the “Kimbe Market Vendors & Growers Association Inc.” (hereinafter, ‘The Association’), purporting to represent the interest of market vendors and retailers in the province. Plaintiff claimed that the Association was set up with the endorsement of the United Nations (UN) Women representative in Kimbe and the Division of Community Development of the Provincial Government. On 22 November 2022, a meeting was held and the plaintiff was elected President of the Association. In that capacity she was co-opted into the West New Britain Provincial Market Authority Board and the Kimbe Market Redevelopment Project. Her swearing-in as Board member, according to her, was delayed due to the fact that the report of the election has not been submitted to the Provincial Government Parliamentary Services Unit. 
7.     On 05 December 2022, the third defendant who is the chairman of the WNBP Market Authority Board through a face book message, advised that the Plaintiff had resigned from her position as the vendors’ representative and the position has now become vacant. The UN Women Group was then requested to hold an election and elect another person to the Market Authority Board as the vendors’ representative. 
8.     A meeting was held on 21 January 2023 and the election of the new president took place witnessed by the UN Women representative and Market Authority Board members. The second defendant was elected President and immediately co-opted as the new vendors’ representative on the Board effectively replacing the plaintiff. The election and membership of the second defendant was subsequently endorsed by the Provincial Executive Council (PEC).
9.    In defending the action, the defendants filed a number of affidavits and supplementary affidavits including other documents in response to the claim made by the plaintiff. 
10.    The defendants deposed to the fact that the so-called Kimbe Market Vendors & Growers Association Inc. is a private entity established by the plaintiff for her own self-interest and gain. It does not represent the interest of the entire market vendors and retailers. There are as many as 14 other similar groups all claiming to represent the vendors. Every one of these groups were seeking some form of recognition and legitimacy of their existence. Many of these groups were set up with ulterior motives to profit out of it rather than to genuinely serve the interests of the vendors. Plaintiff’s Association is but one of them, according to the defendants. Furthermore, the Market Authority Board is established by law and comes under the control of the Provincial Government. Private Associations set up outside of the Provincial Government have no say in the management of the Board including its membership. That is a matter solely in the domain of PEC. Appointment of members of the Board is the sole prerogative of PEC.
11.    Plaintiff was terminated by MINPAC (contractor building the new Kimbe Town Market) as its Liaison Officer when the contractor found out that she was soliciting funds from the members of the public with promises of allocating them, market stalls and spaces after the completion of the new Kimbe Town Market. Plaintiff was not authorized to do so and her conduct was considered unlawful by the contractor and the sponsors of the project. Plaintiff’s termination brought the Association into disrepute. A call was then made for a fresh election to be held to elect a new president to replace the plaintiff. The second defendant was then elected President of the Association. 
B.	ISSUE
12.     The issue is one of standing (locus standi); that is, whether or not the Plaintiff has standing to bring proceedings. 
C.	LAW
13.     The relevant law governing the Market Authority is the West New Britain Provincial Market Authority Act 2021 (hereinafter, the Act) which establishes the Market Authority Board and the membership of the Board. It states:
Section 7: Establishment of the Board
(1)	There is established the West New Britain Provincial Market Authority Board.
(2)	The Provincial Executive Council shall decide on the appointment of Board Members.
Section 8: Membership of the Board
(1)	The Board shall consist of –

(a)	Chairman or Chairperson;
(b)	Deputy Provincial Administrator; Corporate Services (ex officio) or his nominee;
(c)	Kimbe Urban Local Level Government Mayor (ex officio) or his nominee;
(d)	Chief Executive Officer or Provincial Market Manager;
(e)	A representative from the Provincial Health Authority (ex officio) or his nominee
(f)	 A representative of each of the following sectors in the Province:-
(i)	A representative from the WNBP Chamber of Commerce; and
(ii)	NBPOL Tax Credit Scheme Manager; and
(iii)	A nominated Member of Women in the Provincial Assembly representing all women in the Province; and
(iv)	A Community Representative; and
(v)	A vendor and market retailers’ representative.

14.    All appointments to the WNB Provincial Market Authority Board is endorsed by the Provincial Executive Council (PEC). In this instance, the PEC Decision No. 15 of 2020 does not recognize nor endorse the plaintiff as the representative of the vendors and retailers on the Board. 

D.	CONSIDERATION

(i)	Originating Process
15.    I begin by making some observations on the originating process itself and the interim orders that were been sought and granted. The documents filed by the plaintiff are the; originating summons, notice of motion, supporting affidavit and undertaking as to damages. 
16.     The dispute, as I see it, is between the plaintiff, the first, second and third defendants. I cannot see the utility of including the other defendants in this proceedings especially the fourth, fifth, sixth and seventh defendants. Plaintiff has not alleged any specific wrong doing against any of these other defendants either individually or together.  As far as I am concerned, the fourth, fifth, sixth and seventh defendants are not proper parties and do not have any substantial interests in the matter and should not have been included at the first place. They should be removed as defendants from this proceedings.
17.    The dispute relates to the election of the second defendant conducted by the first defendant on the advice of the third defendant. Plaintiff was replaced as president of the Association and also as the vendors’ representative on the Market Authority Board by the second defendant. The originating summons sought declaratory orders not to recognize the election of the second defendant as president. The affidavit attest to that. Plaintiff filed a notice of motion pursuant to Order 12 Rule 1 of the National Court Rules (NCR) and Section 155 (4) of the Constitution and sought urgent interim orders to restrain the second defendant from holding herself out as president of the Association and other defendants from recognizing and dealing with the second defendant. Plaintiff applied to dispense with the requirement for service pursuant to Order 4 Rule 38 (2) (d) of the NCR. Plaintiff is required to demonstrate the urgency of the matter in her supporting affidavits and why the dispensation was necessary, such as the difficulty in locating the defendants in order for service to be effected. Plaintiff’s supporting affidavit filed on 9 February 2023 did not show any urgency in the matter. Indeed, those defendants named were all based here in Kimbe with easy access to be served the process. There was no need for an urgent application. 
18.    Furthermore, urgent interim orders are given to preserve the status quo. In the present case, there is nothing to preserve. Election has been held and the second defendant has been elected president. If Plaintiff is aggrieved with the outcome of the election, then she can challenge that by filing a normal, ordinary application rather than an urgent application for interim orders. There is no need for such. Nonetheless, the interim orders sought were granted. Interim orders are temporary orders only and are made returnable by way of a court order, or by law, or as a matter of course. An order obtained from an interlocutory application is not a permanent order of the court and cannot be enforced as such. That is why the court must be cautious in entertaining contempt proceedings on temporary orders brought on pursuant to Order 14 Rule 42 of NCR. The penalty for contempt is quite substantial, it involves a fine or an imprisonment. It is wrong and improper in my view to commit someone to prison or fine him for breaching a temporary order that is made returnable and may be set aside or discharged at any time. Once discharged, the interim order no longer exist and cannot be enforced.  
19.     To enforce an interim order, the order must first be made permanent and further extended. The plaintiff will be required to make a proper application to the court seeking orders to make permanent the interim order. Such order once granted will preserve the status quo until the substantive matter is determined. In this case, the plaintiff has not done that. The only application on foot was the urgent application seeking interim orders. Once the interim order is made permanent and extended on proper application, then the plaintiff can file contempt proceedings to enforce it in the event of a breach.  Interim orders, given their temporary nature, cannot be enforced in the same manner as the permanent orders. This is not allowed for under the rules. 
20.    The relevant applicable principles relating to extension of interim orders and making them permanent is found in the cases of; Pius Saurio & Ors v Vincent Dau & Ors [2021] N9164;  Tarsie v Ramu Nico Management (MCC) Ltd [2010] PGNC 75; N3960 and Medaing v Ramu Nico Management (MCC) Ltd [2010] PGNC 149; N4127 (per Cannings J). It gives the court the discretion to extend the interim orders and grant permanent injunctions where appropriate on an application. 

21.    The case laws alluded to above succinctly sets out the relevant applicable principles for application relating to the continuation and/or extension of the interim orders and making them permanent. It is incumbent upon the party seeking the interim orders to show that:

(a)	it should only be granted where a strong case that a serious damage will occur to the applicant is made out;

(b)	there is a serious question to be tried and that an arguable case exists;

(c)	an undertaking as to damages has been given;

(d)	damages would not be an adequate remedy if the interim order is not granted;

(e)	the balance of convenience favour the granting of the interim order; and 

(f)	the interests of justice require that the interim order be granted.

22.    The Supreme Court in Ramu Nico Management (MCC) Ltd v Tarsie [2010] PGSC 22; SC1075 affirmed the decision of his Honour Cannings J on the applicable principles in the application for extension of interim orders.

23.    Furthermore, a pre requisite to seeking interim orders is that a substantive application seeking permanent relief must be on foot, the basis upon which temporary orders were sought and granted in the interim whilst the substantive matter is being determined. If plaintiff is not able to prosecute the substantive claim within the timeframe required then he must apply to have the interim orders made permanent and extended. Only then would the plaintiff be able to enforce the order as the full permanent order of the court through contempt proceedings etc. for any breaches that may occur.
24.     I reiterate once more that contempt proceedings for breach of an interlocutory order is most unusual given the temporary nature of it. An interlocutory order is an order which does not finally determine the rights, duties and obligations of the parties. A final order does that. (Adam Brown Male Fashions Pty Ltd v Philip Morris Inc.  (1981) 148 CLR 170). 
25.     For this reason, I didn’t think it was not necessary for me to therefore, deal with the contempt proceedings application filed by the plaintiff on 14 June 2023. I would have refused it had I heard the application for reasons I outlined above. The interim orders issued by His Honour Anis J were made returnable and were dealt with and set aside on 23 June 2023. Since no application was made by the plaintiff to make permanent and extend the interim orders, the orders effectively ceased to exist once they were set aside. It would not have serve any useful purpose to deal with the contempt application.
26.     Another thing, I note from the originating process is that the plaintiff appears to be the only natural person involved in this proceedings with no other support from any of the Association’s executive members as additional plaintiffs to this proceedings. The second plaintiff is an Association (a corporate entity). According to plaintiff’s own affidavit, there are five (5) executive committee members of the Association namely; Carol Lungeno, Theckla Warasuma, Margaret Lazarus, John Rea and Rachel Daro but none of them provided any affidavits or statements in support of the plaintiff in this action. All the affidavits on file were deposed by the plaintiff herself. It raises the question, is the Plaintiff acting for and on behalf of the Association and its members, or is she acting for herself for her own interest? Unless the contrary is shown, I am inclined to think that the latter may be the case. If this view is to prevail then it may find some support in the assertion made by the defendants that the Kimbe Market Vendors & Growers Association Inc. is a private entity owned and operated by the plaintiff. The plaintiff registered the Association with Investment Promotion Authority (IPA) in order to get herself elected as president and eventually onto the Market Authority Board as the vendors’ representative. If there is any truth in this, then it appears that the plaintiff had an ulterior motive right from the beginning. I raised this point because plaintiff has gone to great length to name a total of seven (7) defendants altogether in this proceedings, some of whom I found, do not have any direct interest in the matter, but were been named as defendants in any case, yet on her side she is not able to include one other natural person or alternatively, all of the other executive members she named to represent the Association as additional plaintiffs in this proceedings with her as the principal plaintiff. This would give some credibility to her claim that she is representing the Association and its members. I find this rather unusual. 
27.    Secondly, the plaintiff sought declaratory orders in the originating summons for a declaration of right however, no reference or citation was made to any provisions of either the National Court Rules or the Constitution to give the court the jurisdictional basis to deal with the application per se. The pleadings are not clear. The application on the face of it is defective.  Application for declaratory orders is made pursuant to Order 4 Rule 2 (3) (a) of NCR. A requirement for seeking declaratory order is that the applicant must show certain factors for which the orders are granted. The leading case law is the case of; Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438. The principles of law developed in that case were later adopted and applied to a number of case laws in this jurisdiction such as; Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No.2) [1988-89] PNGLR 425; Placer Dome (PNG) Ltd v. Yako (2011) N4691; Independent State of Papua New Guinea v. Central Provincial Government (2009) SC977; Dr. Onne Rageau v. Kina Finance Ltd (2015) N6175; and National Fisheries Authority v. New Britain Resources Development Ltd (2009) N4068. 
28.     Hartshorn J, in Ere v National Housing Corporation (2016) N6515 held that: 
“As the plaintiffs seek declaratory relief, it is necessary to consider the factors that are required to be established before a declaratory order can be made. The factors are:  

(a)	There must exist a controversy between the parties;
(b)	The proceedings must involve a right;
(c)	There must be an existing right;
(d)	The proceedings must be brought by a person who has a proper or tangible interest in obtaining the order;
(e)	The controversy must be subject to the court’s jurisdiction;
(f)	The defendant must be a person having a proper or tangible interest in opposing the plaintiff’s claim; and
(g)	There must be a real one. It must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility.   

29.    In Pius Pundi v. Chris Rupen (2015) SC1430 the Supreme Court held that:
“A declaration is a discretionary remedy that should only be granted where there exists a real controversy between the parties to the proceedings, a legal right is at issue, the party seeking it has a proper or tangible interest in obtaining it, the controversy is within the court’s jurisdiction, the defendant has a proper or tangible interest in opposing the plaintiff’s claim and the issues involved are real, and not merely of academic interest or hypothetical”.  

30.     The originating process filed by the plaintiff did not set out any or all of these factors to be granted the declaratory orders sought. I am not able to ascertain what the real controversy is between the parties other than the election of the second defendant which the plaintiff disputed. Plaintiff has not described clearly whether the dispute involves a right and if so, was it an existing right she had that has been affected by the actions of the defendants’ actions therefore, she seeks declaratory orders to preserve that right or tangible interest. It is difficult to ascertain what the real cause of action is and whether the remedy sought is just, proper and appropriate in the circumstances. The originating process lacks clarity, to say the least. The affidavit does not lend any support, either. Declarations being the discretionary remedy available to the court in a clear case, I find it difficult to grant orders sought by the plaintiff and must therefore, refuse it.  

 (ii) Locus Standi
31.     The main issue for consideration is whether or not the Plaintiff had standing (locus standi) to bring proceedings or she is just a mere busy body meddling in other people’s affairs. The question of standing has three aspects to it for consideration. Firstly, the question of sufficient interest hence, standing; secondly, whether or not that interest has been so affected by the decisions, actions or conduct of another person or body and; finally, the losses that has been suffered or is likely to be suffered as a result of the decision or actions of others. 
32.     Having a standing or Locus standi is a pre requisite to commencing an action in law. Question of standing relating to sufficient interest varies from case to case and is often answered by examining the subject matter and nature of the decision made on it and the context in which it was made. The onus is on the plaintiff to demonstrate that he had sufficient interest in the matter and that his interest has been so affected by the action or decision of the defendants.  
33.     The requirements of sufficient interest is broad in its application and not restrictive. As long as the plaintiff is able to show that he has some relationship with the subject matter and that his relationship or interest is been affected by a decision or actions of some other person or body, it will be deemed that he had standing. Sufficient interest might be demonstrated by interests of property, legal or financial nature but can also include community, environment, cultural interest and areas of special expertise. (See: Ken Mondiai & Ors v Wawoi Guavi Timber Company Ltd (2007) SC886).  (See also: In Steamships Trading Company Ltd v Minister for Lands and Physical Planning [2000] PGNC 11; N1959, and, Dawidi v Jacob [2001] PGNC 130; N2083). 
34.     In the present case, the plaintiff had not shown what sufficient interest she has in the Market Authority Board, which interest has been so affected by the actions of the defendants. Plaintiff claimed to be representing the interest of the Association and initiated the proceedings in that capacity but the interest of the Association is well represented by the second defendant as president of the Association serving on the Board as its vendors’ representative. In that regard, I cannot see how the interest of the Association would be affected. An Association established under the Associations Incorporation Act 1966 is made up of members not individuals. Members of the Association have the right to elect whom they want as their president to represent them. The dispute relating to the election of the second defendant as president is an internal matter for the Association and its members to sort out between themselves, in my view. This is where it all started, the election of the president. Again, none of the executive members of the Association deposed any affidavits or statement attesting to how the election was conducted from which the second defendant was elected. Plaintiff’s affidavit on the unlawfulness or otherwise, of the election is not supported or corroborated by any other evidence from any independent sources. It seems the plaintiff is on her own in this action. 
35.     In so far as the legislative framework is concerned, section 8 (1) (f) (v) of the Market Authority Act states that;  a vendor and market retailers “representative” is appointed to the Board. It does not say a person elected as president of an Association is appointed to the Board. It means therefore, that one does not have to be a president of an Association to be appointed to the Board, any person can be appointed by PEC. Section 7 (2) of the Act says that the appointment of the vendors’ representative is decided and approved by PEC. It is the sole prerogative of the PEC to decide whom to appoint to the Board and this person may not necessarily be the president of an Association. The law is clear.   Plaintiff cannot claim therefore, that as president she has the right and is entitled to be co-opted on to the Board. This is not what the law says. Putting it simply, being a president of an Association is not a pre requisite to be appointed as a Board member. PEC is at liberty to appoint any person including a non-president to the Board. The power to appoint Board members is entirely and exclusively within the domain of PEC. 
36.    Having found so, that the interest of the Association is adequately been represented by the second defendant as president, the other remaining issue is whether the plaintiff, in her personal capacity, has a sufficient interest in the matter hence, standing to bring proceedings. Plaintiff had not demonstrated sufficient interest in her personal capacity to be heard on application. There is nothing in the supporting affidavit that attest to her sufficient interest. In addition, plaintiff has not shown by way of evidence any losses she had suffered or likely to suffer as a result of the actions of the defendants. Losses such as loss of business, loss of employment, loss of income etc. Plaintiff failed to produce any tangible evidence pointing to real losses. I concluded therefore, that the plaintiff does not have sufficient interest in the matter and therefore, has no standing to bring proceedings. 

E.	ORDER
37.    I make the following Orders:
1.	Application for Declaratory Orders is refused.
2.	Order for interim injunctions is fully discharged.
3.	Plaintiff to pay the cost of this proceedings to be taxed, if not agreed. 

Orders Accordingly

Public Solicitor: Lawyers for the Plaintiff
Kuma Lawyers: Lawyers for the Defendants