Jennifer Gawi v Anna Gawi and Others
| Jurisdiction | Papua New Guinea |
| Judge | Anis J |
| Judgment Date | 01 December 2024,03 December 2024,05 December 2024,07 December 0026 |
| Neutral Citation | N10860 |
| Docket Number | OS NO. 52 OF 2023 (COMM) |
| Counsel | D Kipa, for the Plaintiff,H B Maladina, for the First and Second Defendants,Nil appearances by the Third Defendant |
| Hearing Date | 22 May 2024,14 June 2024,21 June 2024 |
| Citation | N10860, 2024-12-01,2024-12-03,2024-12-05,0026-12-07 |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
OS NO. 52 OF 2023 (COMM)
Between:
Jennifer Gawi
Plaintiff
v.
Anna Gawi
First Defendant
and
S & A Enterprises Limited 1–9571
Second Defendant
and
Harriet Kokiva in her capacity as acting Registrar of Companies
Third Defendant
Waigani: Anis J
2024: 22May, 14 & 21June
DECLARATORY RELIEF — Claimant asserting her rights as shareholder and director — orders sought to void or nullify purported special shareholders meeting that purportedly validated transfer and registration of share and removal of director — claim premised on various breaches of provisions of the Companies Act 1997 — claim of breach or failure to comply with or observe ss 37, 65, 86, 87, 98, 101, 102, 134 and Sch. 2 and 4 — Companies Act 1997 — consideration — whether there had been compliances or observations of these provisions by the first defendant — whether the actions of the defendants be declared void, unlawful or illegal — consideration — ruling
PRACTICE AND PROCEDURES — preliminary issue — motion to dismiss premised on want of mode of proceeding — Order 10 Rule 9A (15)(2)(d)(e) — National Court Rules — whether fraud a primary claim or ground relied upon by the plaintiff to enforce or assert her rights — if so, whether the proceeding should have been commenced by way of a writ of summons and statement of claim — Order 4 Rule 2(b) and Order 8 Rules 2, 3 and 30 — National Court Rules — consideration — ruling
Cases Cited:
Pokia v. Yallon(2014) SC1336
BSP Financial Group Ltd v. The State (2024) N10683
Tavul v Konga(2018) N7599
Westpac Bank PNG Limited v. William Tondopan and 1 Or(2021) N8896
New Britain Oil Palm Ltd v. Vitus Sukuramu(2008) SC946
Ume More v. The University of Papua New Guinea[1985] PNGLR 401
Steven Charles Pickthall v. Lae Plumbing Pty Ltd[1994] PNGLR 363
Papua New Guinea Banking Corporation v. Jeff Tole(2002) SC694
Madiu Andrew v Mineral Resources Development Company Ltd(2004) N2601
Traisa Transport Ltd v. Mountain Property Holdings Ltd and Ors(2024) N10694
In the matter of the Companies Act 1997 – Gigira Development Corporation Ltd and Ors v Stanis Talu and Ors(2021) N9027
Claire Chow v. Delores Chow(2009) N3539
Porgera Gold Mines Ltd v. Kimaleya Ondalane and Ors(2023) N10274
William Lakain v. Senior Sergeant Andrew Wilfred and Ors(2023) N10270
Gadigi v Logae(2021) SC2102
Michael Newall Wilson v Clement Kuburam(2016) SC1489
Application by Anderson Agiru(2002) SC686
Counsel:
D Kipa, for the Plaintiff
H B Maladina, for the First and Second Defendants
Nil appearances by the Third Defendant
Wang Dee: Lawyers for the Plaintiff
Young & Williams: Lawyers for the First and Second Defendants
JUDGMENT
21st June 2024
1.Anis J: This was a civil trial for various declaratory relief. I heard closing submissions on 14 June 2024 and reserved my decision to a date to be advised.
2. This is my ruling.
BACKGROUND
3. The plaintiff was a former director and shareholder of the second defendant (second defendant/company). She held these positions from 2008 to 2023. On 5 August 2023, she learnt that she was purportedly removed as a director and shareholder of the second defendant.
4. Attempts by her to rectify the records kept by the third defendant (IPA) were unsuccessful. She was advised to address her redress in Court.
5. So, on 6 October 2023, she filed this proceeding. The plaintiff is asserting her rights as a purported director and shareholder of the company. She claims that her primary interests or rights as director and shareholder of the second defendant under the provisions of the Companies Act 1997 (CA) were violated, and so she files this proceeding where she seeks various declaratory orders to restore and enforce them (i.e., her rights and interests in the company).
6. The declaratory relief sought are as follows:
1. Declaration that the changes to the directors of S & A Enterprises Limited 1–9571 (sic) on 02 August 2023, involving the removal of the (sic) Jennifer Gawi, is void and of no effect.
2. An Order directing the Acting Registrar of Companies, Harriet Kokiva, to forthwith rectify the Register of Companies to the extent necessary to show Jennifer Gawi is a director of S & A Enterprises Limited 1–9571.
3. Declaration that the changes to the shareholding of S & A Enterprises Limited 1–9571 (sic) on 02 August 2023, involving the transfer of one share to Anna Gawi from Jennifer Gawi, is void and of no effect.
4. An Order directing the Acting Registrar of Companies, Harriet Kokiva, to forthwith rectify the Register of Companies to the extent necessary to show Jennifer Gawi is a shareholder of S & A Enterprises Limited 1–9571.
5. Declaration that the changes to the shareholding of S & A Enterprises Limited 1–9571 (sic) on 08 August 2013, involving the transfer of one share to Anna Gawi from Stephen Gawi, is void and of no effect.
6. An Order directing the Acting Registrar of Companies, Harriet Kokiva, to forthwith rectify the Register of Companies to the extent necessary to show that Stephen Gawi is a shareholder of S & A Enterprises Limited 1–9571.
7. Declaration that the actions of the director, Anna Gawi, to remove Jennifer Gawi as director and shareholder of S & A Enterprises Limited on 02 August 2023 without her knowledge and consent was oppressive under s.152(1) of the Companies Act 1997.
8. An Order directing the Acting Registrar of Companies, Harriet Kokiva, to forthwith remove Anna Gawi as a director of S & A Enterprises Limited and to rectify the Register of Companies to the extent necessary to effect this change.
9. Costs of the proceeding to be paid by the First Defendant on an indemnity basis.
10. Any other orders this Court deems fit.
EVIDENCE
7. Both parties tendered their affidavit evidence without the benefit of cross-examination. The evidence were labeled with exhibit numbers.
PRELIMINARY MATTER
8. At a status conference hearing on 13 May 2024, the first and second defendants (2 defendants) informed the Court that they had filed another notice of motion to dismiss the proceeding (NoM). The NoM was filed on 8 May 2024. I then ordered the NoM to be listed together with the substantive matter for hearing.
9. The NoM seeks the following relief:
1. Pursuant to Order 10 Rule 9A(15)(2)(d) and (e) of the National Court Rules 1983 (“Rules”) and the inherent jurisdiction of the Court, the Plaintiff's proceedings be summarily dismissed for:-
a. using wrong mode of process.
b. and therefore, amounts as an abuse of the process of the Court.
WRONG MODE?
10. The 2 defendants rely on 1 ground to seek dismissal of the proceeding. They claim that a wrong mode of proceeding was used by the plaintiff to commence this proceeding. They submit that the correct mode should have been by way of filing a writ of summons and statement of claim (WS proceeding) as the claim, they submit, is premised on allegations of fraud and thus the rules require that it must be properly pleaded. They rely on Order 4 Rule 2(b) and Order 8 Rules 2, 3 and 30, of the National Court Rules (NCR).
11. The plaintiff, in response, submits first that the NoM is incompetent and must be dismissed because it is vague and ambiguous. The plaintiff submits that the stated sources are too broad and not precise as required by Order 4 Rule 49(8) of the NCR.
12. I note the submissions of the parties.
13. Let me consider Order 10 Rule 9A(15)(2)(d)(e) and Order 4 Rule 49(8), of the NCR. They read in part,
(2) The Court may summarily dispose of a matter in the following situations:
……
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.
…….
8. Form of Motions.
All Motions must contain a concise reference to the Court's jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing.
If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form.
The motion must state the following;
“…move the Court for Order pursuant to (e.g. section 5 of the Claims By and Against the State Act…) …”.
14. I dismiss the plaintiff's argument that the NoM is incompetent. In my view, the ground seeking a dismissal is expressly pleaded, which is, it alleges that a wrong mode of proceeding was used to make a claim that is premised on allegations of fraud. On the face of the NoM, the plaintiff cannot, in my view, seriously say or argue that it is prejudiced or caught off-guard as to what the issue or argument is. See cases: Pokia v. Yallon(2014) SC1336 and BSP Financial Group Ltd v. The State (2024) N10683.
15. I now consider the merit of the competency claim. Did the plaintiff use a wrong mode of proceeding? Should the correct mode be by way of filing a WS proceeding? Order 4 Rule 3 of the NCR states:
3. Where plaintiff may choose. (4/3)
(1) Except in the case of proceedings which by these Rules or by or under any Act are required to be commenced by writ of summons, proceedings may be commenced either by writ of summons or by originating summons as the plaintiff considers appropriate.
(2) Proceedings—
(a) in which the sole or principal question at issue is, or is likely to be, one of the construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law; or
(b) in which there is unlikely to be a substantial dispute of fact; or
(c) in which a person is authorized by an Act, regulation or by these Rules to make an application to the Court or a Judge with respect to a matter that is not already the subject matter of a pending cause or matter, and no other mode of making the application is prescribed by that Act, or regulation or by these Rules,
are amongst those which are...
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