N11127

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 275 OF 2024

BETWEEN
HARING QOREKA
Plaintiff

AND
HON.KITOWE MUMSIONG
Caretaker/Acting Chairman, Kabwum District Development Authority
First Defendant

AND:
KABWUM DISTRICT DEVELOPMENT AUTHORITY
Second Defendant

AND
HON.SOROI MAREPO EOE
Minister for Provincial and Local Level Government Affairs
Third Defendant

LAE: DOWA J
5 DECEMBER 2024; 13 JANUARY 2025

PRACTICE AND PROCEDURE- Dismissal of proceedings for disclosing no reasonable cause of action and for frivolity – Order 10 Rule 9A (15) and Order 12 Rule 40 of the National Court Rules- plaintiff lacking capacity to sue, lack of representative capacity- - clear case for summary dismissal-proceedings dismissed. 

Cases cited
Mt Hagen Urban LLG v Sek No.15 (2009) SC1007
Philip Takori v Simon Vagari (2008) SC905
Telikom PNG v ICCC & Digicel (PNG) Ltd (2008) SC906 
Kerry Lerro v Philip Stagg (2006) N3050
PNG Forest Products v State [1992] PNGLR 84
Ronny Wabia vs. BP Exploration Co. Ltd [1998] PNGLR 8
Wabia vs. BP Petroleum (2019)) N4337
 National Provident Fund vs. Maladina & Others (2003) N2486
 Wambunawa Holdings Ltd. vs. ANZ Bank (2020) N8310
Simon Mali v The State (2002) SC690 
Malem v Bukop Business Group (2020) N8179

 Counsel
T. Topo for the plaintiff
J. Karnus for the defendants

DECISION

1.	DOWA J:	This is a ruling on the competency of the proceedings.

2.	On 5th December 2024, the Plaintiff applied for certain interim injunctive orders against the Defendants. The application was opposed by the Defendants submitting that the Plaintiff lacks standing. The Court refused the application because the Court was of the view that the Plaintiff lacked legal capacity to initiate the action. The Court then invited the parties to address the Court on the competency of the substantive proceedings. The lawyers representing their respective parties made their submissions. The Court reserved the ruling until 13th January 2025 which I now deliver. 
	
Jurisdiction of the Court

2.     The Court, on its own volition, invited the parties to address the issue of whether the Plaintiff had capacity to institute the proceedings. The Court has invoked its powers under Order 10 Rule 9A (15) and Order 12 Rule 40 of the National Court Rules. 

The proceedings

3.	The Plaintiff instituted the proceedings by Originating Summons, supported by the following Affidavits:

           i. Affidavit in Support by Haring Qoreka filed 28th November 2024  
      	ii. Affidavit of Hon.Sam Naimas 28th November 2024 
           iii. Affidavit of Haring Qoreka filed 4th December 2024 
       
4.       The application is opposed by the Defendants and rely on the following Affidavits:
         
i.	Affidavit of Hon Kitowe Mumsiong filed 4th December 2024.
ii.	ii. Affidavit of Ezekiel Nigo filed 4th December 2024 

	Brief Facts

5.	The Plaintiff comes from Kabwum District, Morobe Province. He was a candidate in the 2022 National Elections, running for the Kabwum Electorate. He lost the elections to the incumbent, Patrick Basa but was successful in an election petition which set aside the election of Patrick Basa. The National Court has also ordered a by-election for Kabwum Open Electorate. The by-election is pending the outcome of the hearing of a Supreme Court review.

6.	 The first Defendant is a Local Government Councillor, and President of Yus Local Government. He is currently the Acting Chairman of the Kabwum District Development Authority, having been elected to hold that post in a special meeting of the members of Kabwum DDA on 17th November 2023.

7. 	The Plaintiff initiated these proceedings to stop the first Defendant from using the funds for Kabwum District pending the election of a Member of Parliament for Kabwum. The Plaintiff alleges that the first Defendant was not properly sworn into office and has no standing to make decisions and issue financial instructions for Kabwum DDA in the absence of the open Member.

8.	The Plaintiff’s allegations are refuted by the Defendants. The evidence filed by the first Defendant, Hon. Kitowe Mumsiong and Mr. Ezekiel Nigo, the Acting District Administrator and CEO of Kabwum District show, the first Defendant was properly elected as Chairman of Kabwum DDA on 17th November 2023. He was sworn into office on the same day by the Morobe Provincial Legal Officer. He is duly recognised as Chairman of Kabwum DDA by the third Defendant, Hon. Soroi Eoe, the Minister for Provincial and Local Level Government Affairs, by an Instrument of Recognition dated 17th May 2024. The Secretary for the Provincial and Local Level Government Affairs has uplifted the restrictions placed on the accounts and allowed for the funds to be used for the people of Kabwum following the usual financial and administrative guidelines under the chairmanship of the first Defendant.	

9.	In the Originating Summons, the Plaintiff seeks declaratory orders that the first Defendant was not properly elected as chairman of Kabwum DDA and be restrained from acting in that capacity and further be restrained from accessing and using the funds belonging to Kabwum District.

Issue

10. 	The main issue is whether the Plaintiff has standing to bring this action.

The Law

11.	Order 10 Rule 9A (15) and Order 12 Rule 40 of the National Court Rules are relevant. They read:
	
		a. Order 10 Rule 9A (15) (2)  
“15. SUMMARY DISPOSAL 
(1) The Court may summarily determine a matter: 
a. on application by a party; or 
b. on its own initiative; or 
c. upon referral by the Registrar under (3) below. 
(2) The Court may summarily dispose of a matter in the following situations:
a. for want of prosecution since filing the proceedings or since the last activity on the file; or
) b. for a failure to appear at any of the listing or directions hearing by a party or his lawyer; or
c. for non-compliance of any order or directions previously made or issued by the Court at any of the listing processes.
d. under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules. 
e. on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court. 27. Embarrassment, etc (15/26)

 	(1) Where a pleading— 
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or 
(c) is otherwise an abuse of the process of the Court, 
the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.
(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1). ”

b. Order 12 Rule 40

“Frivolity, etc. (13/5)
(1)	 Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-
•	(a) No reasonable cause of action is disclosed; or
•	(b) The proceedings are frivolous or vexatious; or
•	(c) The proceedings are an abuse of the process of the Court,
The Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”
12. 	The case law on Order 10 Rule 9A (15)(2) and Order 12 Rule 40 of the National Court Rules is well settled.  Refer:  PNG Forest Products v State (1992) PNGLR 84–85, Ronny Wabia v BP Exploration Co. Ltd (1998) PNGLR 8, Wabia v BP Petroleum (2019)) N4337, Mt. Hagen Urban LLG v Sek No. 15 (2009) SC1007, National Provident Fund v Maladina & Others (2003) N2486; and Wambunawa Holdings Ltd. v ANZ Bank (2020) N8310.
13.	The principles of law settled and emanate from the above cases are:		
a.	A claim may be disclosing no reasonable cause of action if the facts pleaded do not clearly show all necessary facts and legal elements to establish a claim known to law.

b.	A claim may be frivolous if it can be shown that it is obviously untenable that it cannot possibly succeed or is bound to fail it if proceeds to trial.

c.	Proceedings are vexatious where the case is a sham, amounting to harassment of the opposing party, or where the opposing party is put to unnecessary trouble and expense of defending the case.
 
d.	The Court has an inherent jurisdiction to protect and safeguard its processes from abuse. 

e.	The Court cannot readily dismiss a case for lack of disclosing a reasonable cause of action or for frivolity or abuse of process unless it is shown that the case is clearly untenable and that it is unlikely to succeed even if it proceeds to trial.

Consideration

14.	The Plaintiff is a leader and comes from Kabwum Electorate. He was a candidate for the Kabwum Electorate in the 2022 National Elections. He lost the elections to Patrick Basa. He brought an election petition against the incumbent Member and succeeded in setting aside the election of Patrick Basa. In its ruling, the Court of Disputed Returns ordered a by election for Kabwum Electorate and the by-election is pending the determination of the Supreme Court Review filed by the former Member. The Plaintiff deposes he has standing as a citizen of Kabwum and a leader representing the people of Kabwum to institute the proceedings to protect the financial interests of the people of Kabwum. He alleges the first Defendant who lacks legal capacity to be chairman of Kabwum DDA is making financial decisions that are not beneficial for the people, and he is seeking orders to prevent misuse and misappropriation of public funds pending the election of the Member of Parliament for Kabwum Electorate.

15.	Mr Karnus, counsel for the Defendants, submits that the Plaintiff does not have standing to institute the proceedings either for himself or on behalf of the people of Kabwum. He submits the first Defendant has been properly appointed by the members of Kabwum DDA and has the mandate of the people as well as the recognition and approval of the Ministry and Department of Provincial and Local Level Government Affairs to make financial decisions for Kabwum District.

16.	I accept the submissions of Mr Karnus that the Plaintiff lacks standing to institute these proceedings. The Plaintiff is not a member of the Kabwum DDA nor is he a Local Level Government Councillor. He is not an elected political leader representing the people of Kabwum. There is no pleading and evidence that the people of Kabwum have all agreed for the Plaintiff to institute the current proceedings to stall the use of funds for developmental purposes for the people of Kabwum.

17.	It is clear the Plaintiff does not have a personal interest in the use of the public funds and the appointment of the first Defendant as Acting Chairman for Kabwum DDA. He is not personally affected by the decision of the members of the Kabwum DDA who elected the first Defendant as Acting Chairman and the administrative decisions made thereafter by the first Defendant. That is, the Plaintiff’s personal and proprietary interest is not affected and thus he has no legal standing to bring this action.

18.	The Plaintiff says he, as leader for the Kabwum people, represents them and thus has standing. The law on standing and representative capacity is settled in this jurisdiction in Simon Mali v The State (2002) SC690 and Malewo v Faulkner (2009) SC960 that in proceedings of representative nature, all intended Plaintiffs must be named and duly identified in the statement of claim and where a person claims to be representing them must show the Court that he has been duly authorized. In my view the Plaintiff has not met the requirements of Order 5 Rule 13 of the National Court Rules. There is no evidence that the people of Kabwum have collectively appointed the Plaintiff to issue the current proceedings on their behalf. The Plaintiff has not commenced proceedings in any representative capacity.
 
19.	The Plaintiff’s representative capacity is not clearly ascertained. It has been held that where a person’s capacity to sue is ambiguous and lacking clarity, the proceedings are an abuse of the process. Refer.  Malem v Bukop Business Group (2020) N8179. This appears to be the case in the present proceedings.

Conclusion

20.	In the end, I have reached the conclusion that the Plaintiff lacks standing to institute the current proceedings. The proceedings are incompetent for being instituted by the Plaintiff who has no legal standing and no legal capacity to sue. While it is not desirable to terminate the Plaintiffs’ proceedings early, the Court has a duty to protect its processes. From the material filed it is clear; this matter is unlikely to succeed even if it proceeds to substantive hearing.

21.	That said, and, in the end, I am inclined to grant the Defendants’
 submissions and thus, the proceedings filed by the Plaintiff shall be dismissed for frivolity and for disclosing no reasonable cause of action pursuant to Order 10 Rule 9A (15)(2) and Order 12 Rule 40 (1) of the National Court Rules.

Costs

22.	 The Defendants seek the cost of the application. It is a discretionary matter. Since the Defendants have succeeded in defending the application, costs shall follow the event, that is the Plaintiffs shall pay the costs of the proceedings. 

Orders

23.     The Court orders that:

1.	The Plaintiff’s proceeding is dismissed. 
2.	The Plaintiff shall pay the cost of the proceedings, such costs to be taxed, if not agreed. 
3.	Time be abridged.
_______________________________________________________________
Lawyers for the plaintiff: Supersonixs & Alu Lawyers	
Lawyer for the defendants: Morobe Provincial Government Legal Officer