N11331

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 100 OF 2021 (IECMS)

BETWEEN:
JUHA PETROENERGY DEVELOPMENT COMPANY LIMITED
Plaintiff

AND:
HELA PROVINCIAL GOVERNMENT
 Defendant

WAIGANI:   DINGAKE J
12 MAY, 05 JUNE 2025

JUDICIAL REVIEW – Mandamus – Requirements – held a promise cannot be the basis of an order of Mandamus – held – Judicial Review dismissed.

Counsel
Mr. Kevin Kepo for the plaintiff
Mr. Justin Wohuinangu for the defendant

Cases cited
Vanimo Jaya Ltd v East New Britain Provincial Government (2018) SC1734
Mavoko v Kumbu SCM No. 19 of 2021; SC2308
Re Reference to Constitution section 19(1) by East Sepik Provincial Executive [2011] SC1151
Radio Taxis Ltd v Wamo [2018] PGSC 98; SC1768
Application by Edward Mike Jondi as General secretary of the PNG Party [2016] SC1561
Maniho v Wenge [1999] PGLawRp 679; [1999] PNGLR 472 (2 July 1999)
Taka v Amean [2006] PGNC 62; N3070 (23 June 2006)
R v Secretary of State for the Home Department, ex parte Fire Brigades Union (1995) UKHL 3

JUDGMENT

1.	DINGAKE: INTRODUCTION:   This is my judgment on the contested judicial review application brought by the Plaintiff, in which it seeks that an Order of Mandamus should be issued against the Defendant. 

2.	The application is brought, inter-alia in terms of Order 16 Rule 1(1), Order 16 Rule 5(1) of the National Court Rules, section 14(3) and (5) of the Claims By and Against the State Act and section 155(4) of the Constitution.

3.	The Plaintiff seeks an Order in the nature of Mandamus compelling the defendant to commit funding of K10,000,000 or any other amount the Court considers just, to carry out feasibility study for the constructions of the Hela Western Missing Link road as required by part J, paragraph 13 of the Infrastructure Tax Credit Revised Guidelines 2019, and based on Governor Undialu’s letter dated 29 September 2019 in which he endorsed the plaintiff’s proposal for the construction of the Hela Western Missing Link road and promised to commit funding for the feasibility.

Background

4.	On the 30th of May 2014, an advertisement was published in The National by the Department of National Planning & Monitoring informing the public that the tender process for the implementation of various infrastructure projects within the PNGLNG license areas would be carried out without delay.

5.	Item No. 9 of the tender advertisement stated that the Juha – Nomad Western Road was one of those projects in the PNGLNG License Area which would be implemented without further delay and called for public bids by interested persons.

6.	On or about the 29th of September 2019, the Governor, by letter of the same date, made a commitment to fund the feasibility study of the construction of Hela Western Missing Link Road to be carried out by the Plaintiff.

7.	The aforesaid letter is material, and it is reproduced, for convenience, in its entirety hereunder:

“TO WHOM IT MAY CONCERN

Dear Sir/Madam,

SUBJECT: HELA WESTERN MISSING LINK ROAD CONNECTION PROJECT PROPOSAL – HELA PEC ENDORSEMENT

My office and Hela Provincial Government as host province of Juha PDL 09 fully endorsed Hela Western Missing Link Connection Road Project proposed by Juha Petroenergy Development Company Limited to construct the new road as agreed in 2009 under Oil MOA and NEC decision number 124 of 2009 respectively.

My office is fully aware of the importance of the missing link road and have prioritised this road and aligned with Hela Provincial Development Plan and District Development Plan to achieve MTDS III 2030 and Vision 2050 by establishing partnership with Provincial Works Division of Hela Province for joint submission to Department of National Planning and Monitoring (DNPM) as per the Revised Infrastructure Tax Credit Scheme (ITCS) guideline 2019.

Therefore, I as PEC Chairman fully endorsed Hela Western Missing Link Connection Project and prepare to commit funding for the feasibility study prior to approval from National Planning and Monitoring Department (DNPM) for full funding appropriation under the Tax Credit Scheme and National Government Budget respectively.

Yours Sincerely,

Hon. Philip Undialu
Provincial Governor
Hela PEC Chairman”

8.	The Plaintiff’s complaint is that despite the Plaintiff’s best efforts to meet all requirements set by State agencies responsible for the management for PNG LNG landowner’s benefits, IDG funding from the Hela provincial Government to carry feasible study has not been forthcoming despite the Governor’s letter dated 29th September 2019 promising to commit funds for that purpose.

9.	The Plaintiff’s cause of action seems to be framed as a breach of a legitimate expectation and the submissions of the parties seem to follow the line of argument that the matter before the court is one for breach of a legitimate expectation conveyed by the letter quoted above.

10.	The Defendant opposes the relief sought and argues that the Plaintiff has not made out a case for Mandamus to issue against the Defendant.

11.	The Defendant has also taken issue with the locus standi of the Plaintiff, arguing that the Plaintiff has no locus standi to pursue this matter or to litigate.

Locus standi

12.		Before dealing with the issue of whether the Plaintiff has standing, I want to make it clear that nothing precludes the Defendant from raising the issue of standing at the judicial review stage even though at the leave stage the court decided that the Plaintiff has standing.  (Vanimo Jaya Ltd v East New Britain Provincial Government (2018) SC1734; Wilson Mavoko v Israel Kumbu SCM No. 19 of 2021; SC2308.

13.	It is important to deal with the issue of standing first because, a finding that the Plaintiff lacks standing would be fatal to the judicial review.  

14.	Furthermore, it is trite law that this Court has an inherent jurisdiction to review standing upon request by a party to a proceeding, or on its own motion without any party requesting it do so: Re Reference to Constitution section 19(1) by East Sepik Provincial Executive [2011] SC1151.

15.	I propose to deal first with the issue of whether the Plaintiff has locus standi to litigate in this matter.

16.	It is trite law that a company is in law, a separate person from its Directors and Shareholders.

17.	In Radio Taxis Ltd v Wamo [2018] PGSC 98; SC1768, sitting as a single Judge of the Supreme Court at [8] – [13], I held that:

8.	A company is, in law, a separate legal person capable of suing or being sued in its own name. Unless the law provides otherwise, the company cannot initiate legal proceedings without a duly passed resolution authorizing the company to litigate. A company that purports to litigate without a duly passed resolution to that effect lacks locus standi and such proceedings amount to an abuse of Court process.

18.	In Application by Edward Mike Jondi as General Secretary of the PNG Party [2016] SC1561, a matter that concerned an application under Section 18(1) of the Constitution, an issue before the Supreme Court was whether the applicant had standing. In considering that question the Court (Gavara-Nanu J, David J & Yagi J) said the following at [16]:

16.	It is trite principle in corporate law that a body corporate is required to make decisions through a recognized body within its corporate structure and in most cases, it is a Committee or a Board. An officer, be it a President, Chairman, Secretary, Treasurer or whosoever or howsoever maybe described, is a Committee or Board member of the body corporate and has no legal authority to make decisions independently on behalf of a body corporate and has no legal authority to make decisions independently on behalf of a body corporate. A body corporate functions and operates through a collective voice. In practice that process is known as a Committee or Board resolution. In this case there is no evidence of a resolution approved or endorsed by the PNC Party through its Party Executive or Committee or Board authorizing the applicant to initiate this proceeding. 
19.	It is a requirement of the law that a company must demonstrate or establish its authority to litigate by filing the requisite authority, in the form of a resolution by the Board. This did not happen in this case.

20.	It is also not in dispute that this Court did not grant leave to the Plaintiff to bring this proceeding in the name of the Company as contemplated by Section 143 of the Companies Act.

21.	Based on the above, in the absence of a Board Resolution, the Plaintiff has no authority to bring this proceeding and accordingly lacks the necessary locus standi to litigate. 

22.	I would dismiss this proceeding on the above ground alone.

23.	However, in the event I am wrong to conclude, as I hereby do, that the absence of a Board resolution is fatal to this proceedings, I would still dismiss this proceeding on the ground that in my mind a promise (contained) in the letter of the 29th of September 2019 cannot be a legitimate basis for an order of Mandamus.

24.	It is trite law that Mandamus, as a relief, applies where a public authority or functionary has breached a legal duty imposed on him/her by statute and or law. Put differently, this Court cannot issue a Mandamus Order to enforce a promise.

25.	The prerogative writ of Mandamus is a command compelling the respondent to perform a public duty. This remedy is particularly appropriate if the person responsible for discharging the public duty has failed to perform it. 

26.	In Maniho v Wenge the National Court (per Injia J, as he then was) articulated the procedure and practice involved in the grant of Mandamus:
…[t]he correct procedure to be adopted when seeking orders of compelling a public official to perform his statutory duty should be by way of seeking an order in the nature of mandamus. The correct procedure is prescribed by Order 16 of the National Court Rules, which is by way of an application for judicial review.

27.	Mandamus will not be granted if it will cause hardship or require an authority to act contrary to law. In Taka v Amean [2006] PGNC 62; N3070 (23 June 2006), Injia DCJ refused to grant relief by way of Mandamus, to compel the Enga Provincial Administrator to reinstate the plaintiff to his former substantive position. His Honour said – “prerogative writ of Mandamus is an equitable remedy and it was very much discretionary. The grant of an order in the nature of Mandamus may be refused where it would cause administrative hardship. Where a public authority is required to act contrary to law, relief such as an order in the nature of Mandamus may be refused”. 

28.	The Learned author C Karaiye, Administrative Law and Judicial Review in Papua New Guinea (Notion Press, 2019) 187 refers to the case of Apotex Inc v Canada (Attorney-General). The Learned author indicates that an order in the nature of Mandamus to issue, the applicant must establish that:

(1) 	there is a public duty to act and that the duty is owed to the particular applicant;
(2) 	there is a clear right to the performance of that duty. In particular:
(a)	The applicant has satisfied all conditions precedent;
(b)	A demand was made to the administrative tribunal to perform the act;
(c)	A reasonable time to comply with the demand was given; and
(d) The administrative tribunal refused or failed to perform the act
(3) 	the applicant has no other adequate remedy;
(4) 	the order will be of practical value;
(5) 	there is no equitable bar to the relief sought; and
(6) 	a balance of convenience favours granting the order.

29.	In the case of R v Secretary of State for the Home Department, ex parte Fire Brigades Union (1995) UKHL 3 the Court ruled that there was no enforceable duty to the Home Secretary to bring a piece of legislation into force at any particular time. The Home Secretary was held to have discretion to implement the legislation when he felt it was appropriate and that to compel the Home Secretary to act would be to interfere with the legislative process.

30.	In this case I am satisfied that, based on the letter reproduced earlier, and finding as I do, that the letter amounted, at best, to a promise, an order of Mandamus cannot be issued based on that letter.

31.	It is also important to bear in mind that the prerogative Writ of Mandamus is an equitable remedy and discretionary. In this case the events that triggered the judicial review seem to have commenced in 2014; the letter by the Governor was written in 2019. On account of the passage of time (from 2014 to date) quite apart from all other grounds already discussed, I would still not be inclined to grant the orders sought, in exercise of my discretion.

32.	In the result, the Court orders that:
a.	The Judicial Review application is dismissed.
b.	The Plaintiff is to pay the Defendant costs as agreed or taxed.
____________________________________________________________
Lawyers for the plaintiff:   Axis Pacific Lawyers	
Lawyers for the defendants:   Gileng & Co. Lawyers