N4702

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 625 OF 2009

Between:

HORNIBROOK (NGI) LIMITED

And:

MR MOGIVI WI AND MRS BOMAGE WI,
First Defendant

And:

MR SENMA GATNA
Second Defendant

And:

MR MUNO SENMA
Third Defendant

And:

JOE WAFI
Fourth Defendant

And:

WILLIE STEWARD AND ROSE KORAI STEWARD
Fifth Defendant

And:

JACK SAGALING
Sixth Defendant

Lae: Murray J.
2012: 18 May
01 June

PRACTICE & PROCEDURE – customary procedure for obtaining and entering consent orders - failure to adhere – consent orders set aside.

Case Cited:

Simon Mali –v- State (2002) SC690
Drew –v- Towers Investment Ltd [1973] PNGLR 450 

Counsel: 

Mr Steven Kesno, for the Plaintiff
Mr Maik Karu, for the Defendants

1 June, 2012 

1. MURRAY, J: INTRODUCTION: Two applications came before me on 18 May 2012. One by the Plaintiff filed on 22 March 2012 which seeks an order that leave be granted to issue a Writ for Possession pursuant to O.13 R 3(1(a) & O.13 R 3(2) of the National Court Rules and the other filed by the Defendants on 28 March 2012 seeking in essence 2 orders. The first being an order to set aside Court Orders of 06 October, 2010 which was entered by consent, and the second being an order to restrain the Plaintiff from developing the land until determination of the application.

Although the application by the Plaintiff was filed first in time, it was agreed by both counsel representing the parties that, I hear the application by the Defendants first, which I did and am now ruling on that. The outcome of this will determine whether I rule on the Plaintiff's application or not.

2. The Defendant in their Notice Of Motion filed 28 March, 2012 sought two main orders. However, I only heard the application seeking an order to set aside the consent order of the Court of 06 October, 2010.

Brief Background

3. The Plaintiff commenced proceedings in October, 2009, originally against first, second, third, fourth & fifth Defendants.

4. The sixth Defendant, Jack Sagaling was later added to as a Defendant by an Order of the Court on an application by himself. The Plaintiff in it's originating summons claims certain declaratory orders that it owns certain portions of land here in Lae and that the Defendants are illegally residing on those land.

5. Additionally, they seek orders to evict the Defendants and take possession of all those land.

6. The consent order, the subject of the Defendants application was entered on 11 October, 2010.

7. The Defendants filed the present application to set aside theconsent order on 28 March, 2012.

Defendants Submission

8. Mr Karu of Counsel for the Defendants submitted that the court has power to set aside the consent orders of 06 October, 2010 and that this power is vested in section 155(4) of the Constitution.

9. The grounds relied upon by the Defendants and submitted by Mr Karu are as follows:

(a)	The meeting of 04 October, 2010 held at the office of the Plaintiff's lawyer that resulted in the drafting of and signing of the orders was only attended by the sixth Defendant and not any of the other five Defendants.

(b)	Neither consent nor authority was given to the sixth Defendant by the other Defendants to attend the meeting and negotiate the terms of the orders on their behalf, or sign the consent orders before it was filed in Court.

(c)	The sixth Defendant attended the meeting in person, as a party without any legal representation.

(d)	When the orders were filed in court, the sixth Defendant who is not a lawyer, had no authority or consent of the other Defendants to represent them as a principal Defendant.

Plaintiff's Submission

10. Mr Kesno of Counsel for the plaintiff submitted that, although the sixth Defendant was the only one out of all the Defendants who attended the meeting of 04 October 2010, they did not see any problem with that because he told them that he was the Customary Land Owner and so had the authority to speak on behalf of the other Defendants, which he did and so the orders of the 11 October 2010 were properly discussed at the meeting of 4 October 2010 and entered.

Evidence

11. In the affidavit of Jack Sagaling, sworn 28 March, 2012, Mr Sagaling who is the sixth Defendant deposes amongst others to the discussions that took place in the meeting of 04 October 2010 that was held at the office of Warner Shand Lawyers, the manner in which the draft orders were presented to him which he signed, and that, he was semi illiterate, meaning, he could only read and write Simple English. 

12. In the affidavit of Dorris Sagaling, sworn on 28 March, 2012, Mrs Sagaling who is the wife of Mr Sagaling, in essence confirmed the matters deposed to by Mr Sagaling as she deposed that she was with him at the meeting of 04 October 2010 and also accompanied him to court on 06 October 2010 when the orders were signed. However, she was not with Mr Sagaling when he signed the Orders.

13. In the affidavit of Joe Wafi, sworn also on 28 March 2012, Mr Wafi, who is the fourth Defendant deposes amongst others that although he is a party to the proceedings and was in Court on 22 October, 2010, the draft orders were never given to him to see and comment on either prior to or on the said date and nor was it given to him to sign, as a party.

14. In response, the Plaintiff relied on the affidavits of Christopher Thompson sworn on the 13 April, 2010, Baru Ovia sworn on the 13 April, 2012 and Lydia Tunian filed on the 08 of May 2012.

15. In the affidavit of Christopher Thompson, who is the Property Division Manager of the Plaintiff, deposes amongst others the following:

1.	That he attended the meeting of 04 October 2010 at their Lawyers office where he noted that out of all the Defendants, only the sixth Defendant attended.

2.	That it was accepted by all those present that Jack Sagaling had the authority over all other Defendants.

3.	That certain suggestions were raised by Jack Sagaling but were all rejected and the reasons for rejections explained to Jack who accepted the rejections. 

4.	That Jack Sagaling accepted that the Plaintiff owned the various parts of land, the subject of the Court, proceedings.

16. In the affidavit of Baru Ovia, the Plaintiff Company Secretary, sworn on the 13 of April 2012, Mr Baru in essence confirmed what was said by Mr Thompson, and included the minutes of the meeting, which clearly set out the names of those who attended the meeting.

17. The affidavit of Lydia Tunian, a former employed lawyer of Warner Shand Lawyers, who has not stated when she signed her affidavit, in essence responded to the matters raised in the affidavits relied upon by the Defendants, denying all that was said. 

LAW

18. The leading authority on an application to set aside consent orders is Simon Mali v State (2002) SC 690. In this case, the Supreme Court (Hinscliffe J, Sakora J & Batari J,) held the following:

1.	The National Court has inherent power to set aside consent orders even when the orders finally disposes of a claim.

2.	The National Court's jurisdiction to do that is section 155(4) of the Constitution.

3.	This power can only be exercised in two instances.

(a)	Where there are errors on the face of the courts record and

(b)	Where there are procedural irregulatories associated with the obtaining of the consent orders

19. As regard the first instance, the Supreme Court found that there were a number of persons who became beneficiaries of the consent order, but yet they were not actual named Plaintiffs and nor was there evidence that they consented to being parties to the proceedings, hence the decision that there was a patent error on the face of the Court's record. 

20. As regard the second instance, the Supreme Court found that the set customary procedures for obtaining consent order as set out in Drew v Towers Investments P/L [1973] PNGLR 450 were not followed and so the Trial Judge was entitled to set aside the Consent Orders.

21. Of the grounds highlighted, it is the Defendants main contention that, although there are six Defendants, named in this proceeding only one attended the meeting of the 04 October 2010 and later signed the draft consent orders, the subject of this application, without the consent or authority (emphasis mine) of the other five Defendants.

22. To my mind these are procedural matters, therefore taking into account the decisions in Simon Mali's case, it is for this Court to consider whether there was any procedural irregularity associated with the obtaining of the consent order of 06 October, 2010.

23. If so, then according to the Supreme Court judgment in Simon Mali, which I find applicable, the orders of the 06 October, 2010 can be set aside.

Consideration & Ruling

24. The Plaintiff filed these proceedings against five Defendants originally. The sixth Defendant was added later.

25. Since the commencement of this proceeding, the Defendants were not represented by a lawyer and that fact remained throughout, which the Plaintiff who was represented by Lawyers were fully aware of.

26. At the meeting of the 04 October 2010 following the Court Direction that parties attempt settlement out of Court, only the sixth Defendant attended as opposed to a delegation of Representatives of the Plaintiff comprising of two lawyers.

27. In the course of the meeting as indicated in the minutes, Jack Sagaling represented himself to be having authority to speak for all the other Defendants which the Plaintiffs Lawyer accepted, without questioning the legal basis of Jack's representation and the claim that he was the customary landowner.

28. I have read the affidavits relied upon by the plaintiff and noted that there was no evidence from anyone that Jack Sagaling who is not a Lawyer, was authorised to speak on behalf of the other Defendants or even to sign the orders on their behalf. This was confirmed by Mr. Kesno, when I enquired about the evidence of authority. 

29. In Simon Mali (supra), the Supreme Court held that Sheehan J was entitled to set aside the consent order, as the customary procedures as set out in Drew v Towers Investment Ltd [1973] PNGLR, 450 for obtaining and entering consent orders were not adhered to.

30. The procedure, as per Frost SPJ in Drew v Towers Investment Ltd [1973] PNGLR 450 are that:

(1) The draft order must have the written consent of all (emphasis mine) parties or their lawyers (emphasis mine) and that consent must be evidenced by endorsement of the respective parties or their lawyers.

(2) The judge presiding over the matter must also endorse the draft order,

(3) An application to enter a consent order should not generally be made ex parte or in chambers, but if it is considered necessary to determine on application ex parte or in chambers, proper record of the proceeding must be kept.

31. As the Supreme Court in Simon Mali has held these procedures to be the procedures for obtaining and entering consent orders, I apply them accordingly in the present case.

32. The defendants' main concern in the present case is that, the order was singed by one person only and that person did not have the authority to sign on their behalf.

33. Mr Kesno of counsel for the Plaintiff submitted that the consent order was a result of much discussion between Jack Sagaling and his clients of which Jack accepted after the proposed terms were explained in Pidgin.

34. That maybe so, however, the fact remains that, the only signature on the Consent order, other than that of Mr Ousi, of Warner Shand Lawyers for the Plaintiff, is that of Jack Sagaling alone (emphasis mine). The law as set out in Drew v Towers is that, in order for a consent order to be valid, the draft must amongst other criteria as set out in Drew v Tower Investment Ltd, be endorsed by all parties or their lawyers.

35. It does not say that it can be signed by someone who claims to be the lead party. 

36. In this case, the evidence is that, at the relevant time, the Defendants were not represented by a Lawyer and Mr Sagaling who is not a Lawyer, had no authority from the other Defendants as lead Defendant, and even if there is evidence of such, which I say there isn't, the criteria in the Drew case is very clear, viz the draft must be signed by all the parties or their Lawyer/s. Therefore, in my view, the only cause of action that the Plaintiff's Lawyer should have taken was, insist on getting all the Defendants to endorse the Draft Order, before it was handed up. This he did not do.

37. Given all the circumstances, I am satisfied that the orders of 06 October 2010 were not obtained in accordance with set procedures, and so I now set aside those orders.

38. In the light of this, I do not think it is necessary to consider the Plaintiff's application which was made pursuant to the Court Order of 06 October 2010 which I have just set aside.

_________________________________________________________
Warner Shand Lawyers: Lawyer for the Plaintiff
Daniels & Associates: Lawyer for the Defendants