N5413

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO. 1233 OF 2009

BETWEEN:

LISKO BUILDING LTD
Plaintiff

AND:

AKUILA TUBAL
First Defendant

LIEUTENANT JOHN PORTI (DA)
Second Defendant

HON. PATRICK TAMMUR
Third Defendant

EAST NEW BRITAIN PROVINCIAL GOVERNMENT
Fourth Defendant

THE STATE
Fifth Defendant

Kokopo: Oli, AJ
2013: 17th September & 7th & 14th October.

CIVIL JURISDICTION - PRACTICE & PROCEDURE –– Application to set aside consent order under Order 1 Rule 9 of NCR – Due to irregularity consent order obtained – Consider requisite requirement in application to set aside – Affidavit must have a defence on merit – Application made promptly - Reasonable explanation why judgment was entered – Considered requisite requirement satisfied - application to set aside irregular judgment granted. 

 CIVIL JURISDICTION - PRACTICE & PROCEDURE - Application to set aside irregular consent Order – Considered and grant the application – Further consideration of application under s. 155 (4) Constitution - Considered appropriate and applied to protect primary rights of parties; in particular 4th and 5th Defendants' – Matter set for trial.

Cases Cited:
Papua New Guinea Cases

Green v Green [1976] PNGLR 73.
The Government of Papua New Guinea and Davis v Baker [1977] PNGLR 386.
George Page Pty Ltd v Malipu Bus Balakau [1982] PNGLR 140, 
Mapmakers Pty Ltd v Broken Hill Pty Co Ltd [1987] PGNC 46; [1987] PNGLR 78; N588 (12 May 1987) 
Leo Hannet v ANZ Banking Group (PNG) Ltd (1996) SC505
Barava Limited v Registrar of Companies MP No. 52 of 2009 (8th May 2009 Kokopo)
Thomas Rangip v Peter Loko (2009) N3714
Jifok v Kambang Holdings, Unnumbered judgment of Davani J delivered 21st July, 2006

Overseas Case Cited

Waitemata City Council v Mackenzie [1988] 2 NZLR 242 

Counsels: 

Mr. E. Paisat, for the Plaintiffs
Mr. N. Saroa, for the Defendants

RULING

14th October, 2013

1.	OLI, AJ: The counsel for the defendants' by amended Notice of Motion filed on 3rd June 2013, seek the following orders:

1.	Pursuant to Order 1 Rule 9 and Order 12 Rule 8 (4) and Rule 8 (5) of the National Court Rules and Section 155 (4) of the Constitution, the Order made on 18th February 2013 herein be set aside forthwith on grounds that:

a)	There were errors on the face of the Court's record, viz among others;

b)	The consent orders were made in proceedings WS No. 1234 of 2009 where the parties are Lisko Building Limited (trading a Lisko Hire Cars v. Joseph Tubung & 4 Ors) therefore is inapplicable and has no effect on proceedings herein WS No. 1233 of 2009.

Notice of Intention to Defend was filed and so it was the intention of the Defendants to defend the claim.

Consent orders were improperly entered into as Default Judgment by the Plaintiff seeking the same terms in the consent order was refused on 18th July 2011 (per Hartshorn J).

2. There were procedural irregularities associated with the obtaining on the Consent Orders of 18th February 2013,viz among others:

(i) The Plaintiff together with the Provincial Legal Officer of the Fourth Defendant failed to obtain proper instructions in writing as to enter into consent orders for payment of the K832,493.20

ii. The Plaintiff failed to give notice as required by the Mapmakers case as the Defendants has filed Notice of Intention to Defend.

3. Pursuant to the inherent jurisdiction of the National Court, an Order that the Defendants be granted leave to file and serve their Defence out of time within next four (4) days from the date of this order.

4. Costs be in the cause.

5. Such further order or other orders this Honourable Court deems appropriate.

6. Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

2.	The defendants' application is supported by the two affidavits and submission by Counsel Mr. Saroa. The other is the affidavit of the Defendants' Counsel sworn on 22nd and filed on 23rd August 2013 and the affidavit of Mr. Wilson Matava, acting Provincial Administrator, for East New Britain Provincial Administration sworn on 3rd June 2013 and filed on the even date, who replaces the first defendant Mr. Aquila Tubal, former Provincial Administrator of East New Britain Province. The plaintiff relies on an affidavit by Mr. Robert Tamtu, the principal owner of the plaintiff company sworn on 13th June 2013 and filed on 13th August 2013 and other material evidence and documents in the file. There was no written submission from the plaintiff's counsel.

BACKGROUND

3.	The brief background to this case is that the plaintiff filed a Writ of Summons (WS No. 1233 of 2009) on 1st October 2009 against the defendants for breach of contract by "defendants' failure to honor its side of the Agreement by not allowing the plaintiffs' to complete its duties and obligation pursuant to the Contracts." The plaintiff pleads that the terms of the four (4) Contracts are similar and are set out briefly as follows:

(i)	The plaintiff shall supply labour and materials for the purposes of construction to the four (4) houses; in particular 3 Bedroom H65/95 High-Set House for Rural Electrification & Communication (DSIP).

(ii)	That the costs of erecting one 3 Bedroom standard DOW H65/95 High Set is K208,123.39.

(iii)	That the period within which to construct the said houses is (12) weeks (60 working days).

4.	The Plaintiff upon execution of the said Contracts took steps to:

(i)	Mobilize all construction materials and logistics;

(ii)	Inspect the area at Bitpaka upon which the said four (4) houses shall be built;

(iii)	Completed all frame work for the said four (4) houses.

5.	As a consequence of the Defendants' action and or omission, the Plaintiff has wasted time, manpower and loss of opportunity to apply for other contract works. The Plaintiff therefore claims:

(i)	K832,493.20 as breach of Contract, or in the alternative;

(ii)	Damages for breach of Contract, in the alternative;

(iii)	Damages on a quantum merit basis;

(iv)	Punitive damages to be assessed;

(v)	Interest pursuant to Statute;

(vi)	Any other or further Orders the Court deems fit. 

6.	When the defendants were served with WS No. 1233 of 2009 on 2nd October 2009 the defendants immediately filed a Notice of Intention to Defend the action on 15th October 2009 without any particularised defence and or evidence supporting the particularised defence to defend the action. The plaintiffs on 8th December 2009 filed a Notice of Motion to seek Default Judgment due to the defendants' failure to file particularised defence to defend the action as per the Notice of Intention to defend the action filed on 15th October 2009. 

7.	According to the plaintiff, the principal owner Mr. Robert Tamtu who deposes in his affidavit stated that there was some discussion between himself and his lawyer with the defendants' in-house lawyer with the 4th defendant's East New Britain Administration that the matter will be settled out of court, hence the Motion was stalled. However, two years has gone by and there was no settlement forth coming from the defendants and so the plaintiff moves the motion on Default Judgment again on 18th July 2011 and was dismissed on the same date for failing to prosecute the motion filed within one month or after two adjournments since filing on 8th December 2009 pursuant to Order 4 Rule 49 sub rule (17) of the National Court Rules 

8.	The matter lay dormant for another two years whilst prospect for out of court settlement discussions was going on between parties with no positive traction on commitment to really settle out of court was forth coming from the defendants. On 18th February 2013 the in-house lawyer Mr. Benedict Kilian for the defendants and Counsel for plaintiffs Mr. Motuwe Neserewa did strike a deal and entered into Consent Order evidenced by their signatures to really settle out of court as final settlement on the matter, subject to formal sanction by the Court. On 3rd June 2013 the defendants upon receipt of the Consent Order were aggrieved and filed a Notice of Motion to set aside the Consent Orders of 18th February 2013 by Plaintiff's Counsel and 4th Defendant's in-house lawyer. Hence, this application before this court to determine whether the consent orders of 18th February 2013 were irregular and therefore should be set aside and Court should order that substantive matter should go for trial for proper determination of much serious legal issues being raised in this application on foot as claimed by the defendants. 

THE LAW
Application to Set Aside
9.	The application to set aside Ex parte Orders is provided under Order 1 Rule 9 of the National Court Rules where it provides:

An application to set aside any irregularity shall not be allowed unless it is made within reasonable time, or if made after the party applying has taken any fresh step with knowledge of the irregularity.

10.	The application to set aside any irregularly entered judgment will invoke the same principles applied in regularly entered judgments. This legal proposition is re-enforced in the case of Jifok v Kambang Holdings and Granville Smith, J, in Page P/L – v – Malipu Bus Balakau [1982] PNGLR 140 who said, "that the same rules in relation to the setting aside of a regularly entered judgment applies to a judgment irregularly entered that falls within the ambit of Order 1 Rule 9 of the National Court Rules." This means that the procedural requirements used in regularly entered judgment application to set aside will be the same applied in the irregularly entered judgment. 

11.	The fundamental principles that govern and regulate the application to set aside regularly entered judgments are well set out in the well known case of Green - v – Green [1976] PNGLR 73 in this jurisdiction. The applicants must satisfy the following conditions. They are:

a.	There must be an affidavit stating facts showing a defence on the merits; and 

b.	There must be reasonable explanation why judgment was allowed to go by default; and

c.	The application must be made promptly and within a reasonable time. 

12.	I now briefly deal with the three principles in this case in the order as they appear as follows: 

 (a)	 Affidavit Showing a Defence on Merit.
13.	The defendants filed a Notice of Motion to Set Aside the Consent Order of 18th February 2013 entered between plaintiff's Counsel and fourth defendant's in-house lawyer Mr. Benedict Kilian came about when new acting Provincial Administrator Mr. Wilson Matava, in his affidavit in support of the Notice of Motion to set aside the Consent Order, unreservedly highlighted certain irregularity about the Building Contracts awarded to the plaintiff's company and the legal aspect of the purported Consent Order being entered into between plaintiff's counsel and 4th defendant's in-house lawyer without lawful authority. 

14.	Mr. Wilson Matava opposes the Consent Order from the outset and raises serious legal issues of breaches in respect to non compliance with the requisite guidelines and procedures set down under Provincial Supply and Tender Board, and Financial Instruction Manual under Public Finance (Management) Act 1995 in awarding the Building Contracts to plaintiff's Building Contractor Company. 

15.	The defendants being aggrieved (in particular new acting Provincial Administrator Mr. Wilson Matava who replaces Mr. Akuila Tubal, former Provincial Administrator as 1st Defendant) by the so called Consent Order filed Notice of Motion to set aside the Consent Order. See Green & Co Pty Ltd v Green [1976] PNGLR 73, George Page Pty Ltd v Malipu Bus Balakau [1982] PNGLR 40, and the The Government of Papua New Guinea and Davis v Baker [1977] PNGLR 386. 

16.	It is very clear from the evidence of the affidavit of Wilson Matava that there is a defence on merit. The witness made specific reference to four (4) separate Building Contracts entered between the Plaintiff and the Defendants were crafted in such a way to avoid Provincial Supply and Tender Board procurement procedures and requirements under the Financial Instruction Manual under Public Finance (Management) Act 1995. According to new acting Provincial Administrator Mr. Wilson Matava, the four (4) separate Building Contracts should have been drafted and consolidated into one single Building Contract to a total sum of K832, 493.20 and not divided into four separate Building Contracts each valued at K208, 123.30 to avoid Central Supply and Tender Board procurement procedures. 

17.	The acting Provincial Administrator alleges that four units were put into four separate contracts to further progress their hidden agenda to bypass the normal tender process through Central Supply and Tenders Board when monetary value is over K300,000.00. But it was cut into four separate lot or batch of K208,123.30 to come under Provincial Supply and Tender Board procurement monetary ceiling. The pertinent question to be answered is whether to cut the four units into four separate Building Contracts lot or batch of K208,123.30 each to come under the Provincial Supply and Tender Board financial procurement limits was legal? 

18.	This is a real legal issue that can only be addressed properly during a trial proper and the parties must and ought to be given that opportunity to present their side of the story leading up to the execution of the four (4) separate Building Contracts in this matter.

19.	It is interesting to note that the plaintiff did have the second shot at the opportunity to secure a Default Judgment, but the motion was again refused by the Court on 18th July 2011.The matter lay at the Registry since then for another two years and it began to pick up positive momentum slowly but surely through the tireless effort of the plaintiff's counsel and the 4th defendant's in-house lawyer that the matter began to experience positive traction and some wave of real commitment coming from the defendants that resulted in the drafting of the Consent Orders supposedly entered into between the Plaintiff and the Defendants. 

20.	The Consent Order made on 18th February 2013 between the Plaintiff's counsel and 4th defendant's in-house lawyer were drafted in this terms:

1.	Judgment be entered against the 1st, 2nd, 3rd & 4th defendants' in the sum of K832,493.20 with interest of 8% per annum from the date of filing of this Writ to the date of settlement.

2.	Any monies paid as mobilisation fund shall be deducted from the above figure.

3.	Cost of this application be paid by 1st. 2nd, 3rd & 4th defendants' to be taxed if not agree.

21.	The above Consent Order was drafted by the Plaintiff's Counsel and the 4th Defendant's in-house lawyer was initially signed as a demonstration of good faith subject to Courts formal endorsement through proper application before the Court by both parties willing to take it up to this level. The prospect for parties to take the purported Consent Order to be formalised did not look promising when the new acting Provincial Administrator Mr. Wilson Matava took over from former Provincial Administrator Mr. Aquila Tubal. The matter took a new twist when Mr. Wilson Matava took office in February 2013; the said Consent Order has become the number one agenda on Mr. Matava's priority list and become the subject of application to set aside the said Consent Order now before this Court.
 
(b).	Reasonable Explanation

22.	The Consent Order was obtained not by default judgment process but obtained through the initiative of two people to settle out of court on behalf of the defendants as amicable settlement in this matter. The Consent Order, unfortunately, made by a person without the lawful authority or by delegation to do so on behalf of the 4th defendant other than the Provincial Administrator. The difference in this case is that the Consent Order was allowed to be made by default by an Officer who does not have the lawful authority to unilaterally commit on behalf of the defendants including the nominal 5th Defendant, The Independent State of PNG through the purported Consent Order on the basis of vicarious liability as principal and agents under the Law of Contract. 

23.	The new acting Provincial Administrator Mr. Wilson Matava, who took office in February 2013, found that there were all range of obvious anomalies with Provincial Supply and Tender Board procurement procedures and noncompliance with Finance Instruction Manual under Public Finance (Management) Act, immediately issue instructions to Nelsons Lawyers to file this motion to set aside the Consent Order of 18th February 2013. 

24.	Having heard brief explanation offered by plaintiff's counsel I can appreciate why and how the Consent Order was orchestrated or engineered that resulted in the eventual drafting and signing by an officer within the 4th defendant's Administration structure. I am satisfied that there is reasonable explanation offered as to how it was crafted and created such as Consent Order. The history of this case reveal that on two occasions the plaintiff did attempt to seek default judgment against the defendants but on those two attempts the applications were refused. 

25.	The only avenue available was for the plaintiffs to set the matter down for trial for inter-party hearing to thrash out the serious legal issues being raised in this application by the new acting Provincial Administrator Mr. Wilson Matava. The trial process through interparty hearing will vindicate the plaintiffs role in this case if normal contract approval process and procurement procedures as per the Provincial Supply and Tender Board and Finance Instruction Manual under Public Finance (Management) Act or any other guidelines were indeed followed. 

26.	The outcome through the trial process will instil and maintain agencies good governance and consolidate the transparency process that raise the level of integrity of the Government systems in place; that facilitate delivery of Government goods and services to the people under its District Services Improvement Program (DSIP) through its annual action plans. 

27.	The trial process will also highlight the current systems strength and weaknesses so that timely diagnostic remedial actions are put in place to cure the short comings in the current government systems. The trial process at the same time will have parallel rippling effect that will identify where possible immediate notable manpower deficiency within the Provincial Administration over all Public Service bureaucratic machinery in the Province. The East New Britain Provincial Administration is no exception in this regard and this case is the clear demonstration of such challenges in administration and management of Government funds and assets at the Provincial Administration level.

(c).	Application Made Promptly

28.	The defendants submit that the application to set aside has been made promptly with due diligence. This is evidenced by the fact that the acting Provincial Administrator Mr. Wilson Matava said in his affidavit that upon assuming his position as acting Provincial Administrator in February 2013, reviewed all legal files and issue instructions to Nelson Lawyers to take carriage of the matter and file application to set aside Consent Order on 3rd June 2013. I am satisfied that the defendants have filed the application promptly with due diligence and speed upon him learning of the anomalies in the Building Contracts that translate into Consent Order. 

29.	Mr Wilson Matava in his capacity as new acting Provincial administrator took office and assumes official duties as per his official appointment in February 2013 from the former and outgoing Provincial Administrator Mr. Akiula Tubal did not waste time but took steps to set aside the Consent Order. See also in the following cases of Leo Hannet – v – ANZ Banking Group (PNG) Ltd (1996) SC505 (supra) and Rangip – v – Loko Unreported National Court Judgment (2009) N3714. 

30.	The purported Consent Order of 18th February 2013 seems to have the connotation and appearances of formal "Consent Orders" when in fact it is not. It was out of court settlement "Consent Order" draft by plaintiff's counsel and 4th defendant's in-house lawyer. May it suffice to refer to it as a "Proposed Consent Settlement Package between Plaintiff and 1st, 2nd, 3rd and 4th Defendants" subject to Courts formal endorsement through formal application before the Court to formalise it as a Court Consent Order properly issued by the Court. 

31.	The said Consent Order unless it was further sanctioned by the Court through a proper application before the Court and after Court being satisfied that it was an authentic Consent Order by all parties, Court would then grant the formal Consent Court Order per se. This will then have a legal binding effect and force of the law on all parties in this matter. The "Consent Order" with its current form did not reach the formal stage to have it endorse as a proper Consent Order by the Court is just another piece of court papers'. I doubt it may have the force of the law for all practical purposes simply because the Orders issued by the Court is the only mode that has the force of the law through the due process of the law in this regard, despite it being sealed at the National Court Registry. 

32.	The defendants further submitted that the sealing of the Consent Order by National Court Registry should not be a bar to the hearing of the application to set aside the Consent Order itself. In fact the paramount consideration in the interest of justice in this application warrant that the Consent Order of 18th February 2013 is set aside due to its revelation of several irregularities in the manner it was obtained. I accepted the defendants' counsel's submission and adopted the legal propositions advanced in respect to the sealing of the Orders should not constitute a bar to setting aside in the interest of justice. The case on this point is re: Barava Limited v Registrar of Companies MP No. 52 of 2009 (8th May 2009 KOKOPO) per Hartshorn J adopted and states: 

"Given this state of affairs I am reminded of the words of Casey J, in the New Zealand Court of Appeal case of Waitemata City Council v Mackenzie [1988] 2 NZLR 242 at 249 where Casey J, in the judgment he delivered on behalf of the Court said: So long as the rights of others have not been materially prejudiced, I can see no virtue in the formal operation of sealing sufficient to constitute a bar to any prospect of restoring the parties to the position they should have been all along.

Whatever the grounds for seeking to set aside the order, the ultimate question is whether such a step is called for in the interest of justice, having regard to all the circumstances of the case."

33.	I respectfully agree and adopt the above comments in this case having considered the special and questionable circumstances of the four (4) separate Building Contracts which were drafted and awarded to the Plaintiffs and the manner in which the Consent Order in question was crafted and seeks Courts formal endorsement in this matter. Even, if in the absence of the above case authority, I am of the view that the inherent power of this court under s. 155 (4) Constitution would be available to make"... in such circumstances as seem...proper...orders as are necessary to do justice in the circumstances of a particular case."

34.	I think this case is an appropriate case not to apply the Court seal as a bar to avoid the prejudicial effect that frustrate the interest of justice of the other party, in this case the 4th defendants with the prospect of restoring the parties to the position they should have been all along. The ground for seeking to set aside the Consent Order, the ultimate question is whether such a step is called for in the interest of justice, having regard to all the circumstances of the case. The irregular nature of the Consent Order and the meritous defence in favour of the defendants are circumstances of the case that warrant the relief sought by defendants to set aside the Consent Order, so that the trial proper will ensue justice is not only done but seen to be done in this case

35.	Whilst I remind myself of the utility of s. 155 (4) Constitution can only be applied in the absence of no relevant provisions in the National Court Rules or other Acts, in the case of Thomas Rangip v Peter Loko (2009) N3714, his Honour Hartshorn J, held that s. 155 (4) Constitution is only to be relied upon to protect the primary rights of parties in the absence of other relevant law. In addition s. 155 (4) cannot be applied to do anything contrary or inconsistent with the provisions of the National Court Rules. Also considered Mapmakers Pty Ltd v Broken Hill Pty Co Ltd [1987] PGNC 46; [1987] PNGLR 78; N588 (12 May 1987) where in view of the requisite requirement of application to set aside Ex parte judgment by his Honour then late Honourable Chief Justice Sir Buri Kidu restate the importance of observing the three important considerations and the onus is on the applicant to fulfil the requisite requirement to set aside an Ex parte judgment. 

36.	In this case His honour late Chief Justice Sir Buri Kidu then made profound statement on the need to forewarn the defendants' counsel of plaintiff's intention to seek default judgment or the range of generic relief. This practice is well settled in our jurisdiction with counsels forewarning the other counsel's intention to set aside or seek dismissal order for want of prosecution is fair and prudent and due procedural practice and they have already found their way into the latest edition of National Court Rules published on 1st December 2012.

37.	The defendants take particular issue on procedural non-compliance against the plaintiff's for lack of forewarning with the Notice of Motion to seek default judgment against the defendants. The defendants' counsel echoed the requirement in Mapmakers case that counsel is required to forewarn the defendants that they are filing the Motion to seek Default Judgment for not filing particulars of defence and affidavit supporting the defence. The plaintiff's counsel in response however, said that the defendants were kept in the loop when his client files the Motion to seek Default Judgment so the requirement in the Mapmakers case was complied with and there is no real issue. The only niggling issue that the plaintiffs said that has contributed to the procrastinated state of not able to prosecute the matter early is due to the defendants' empty promises to settle out of court prospect has dragged the matter over last four years to this date. 

38.	I do not see that there is much harm done to the defendants due to procedural non-compliance by the plaintiffs because as both Notices of Motions to secure default judgments by the plaintiffs, the defendants' counsel was in attendance on both occasions the motion for default judgments were refused. Hence, the defendants have really suffered no harm at all in this regard.

39.	The plaintiff's insistence to secure default judgment on two occasions against the defendants, though defendants have filed their Notice of Intention to Defend the action. The defendants have not filed any particularised defence nor affidavit evidence to support the defendants' defence against the plaintiff's claim. 

40.	The plaintiffs submit that it was the defendants' persistent plea to settle out of court that plaintiff had unwillingly with held the motion from moving it for another two years or set the matter down for trial. When the defendants failed to honour their commitment to settle out of court, the plaintiff has resurrected the file to have it listed for the plaintiff to move the motion to seek default judgment. The defendants by this time had not filed particularised defence and affidavit in defence. The motion was moved in court but it was dismissed for want of prosecution on the grounds that the plaintiff failed to prosecute the matter within one month or thereafter pursuant to Order10 Rule 5 of the National Court Rules when in fact the defendants' filed Notice of Intention to Defend the action in December 2009.

41.	In view of the special and unfortunate anomalies of this case, I am inclined to apply s.155 (4) Constitution to protect the primary rights of parties due to the public interest and public importance of the matter in this case. In other words, to really get down to the bottom of the case as to how public funds were accessed and awarded to Building Contractors by those who were in position of power and authority to do what they did, whether they were acting with proper authority and power according to the rule of law or lack thereof. By invoking Courts inherent power under s. 155 (4) Constitution is to protect the primary rights of the public by those who are in power who represent their collective interest in the position they hold that they perform their duties according to their mandated duty statements according to the rule of law. 

42.	It is in the interest of justice that, public importance and public interest demands that those major players in the East New Britain Provincial Administration and its agencies to reveal during trial proper as to how four (4) separate Building Contracts were awarded to the Plaintiff's Building Contractor and early this year on 18th February 2013, how plaintiff's Counsel and 4th defendant's in-house lawyer was able to commit the defendants through the so called Consent Order of the total four (4) separate Building Contracts value at K8832,493.20 

43.	The acting Provincial Administrator Mr. Wilson Matava has echoed in his affidavit some serious allegations of non compliance with Provincial Supply & Tender Board and Financial Instructional Manual under Public Finance (Management) Act where public monies were committed to progress government delivery of goods and service programs in East New Britain Province.

44.	The defendants having made this serious allegations of breaches of non compliance with Provincial Supply & Tender Board and Financial Instruction Manual under Public Finance (Management) Act but failed to point out in some material particular as to where the breaches of non compliance with the above two accountable government public documents may have been breached by the defendants. 

45.	The defendants through new acting Provincial Administrator has speculated some areas of possible breach are in the following areas of awarding contract total monetary value exceed Provincial Supply and Tender Board financial limit of K300, 000.00, the awarding of contract should be under one contract in total and not break it down to four (4) separate contracts to fall under Provincial Supply and Tender Board financial limit. He further claims that this was done deliberately in to order to evade the Central Supply and Tender Board financial procurement limit. 

46.	These are a serious allegations that the Court cannot give a blind eye nor deaf ear to; and brushed it aside that easily. But public policy and public duty demands that these issues go through the normal due process of the law through inter-party trial proper so that Mr. Wilson Matava's allegations are given appropriate and relevant perspective through the trial proper that these serious allegations on the face value are not just mere speculation without any real substance in them. The due process through the inter-party trial proper will determine the matter to its finality as between the parties by the Court once and for all.

47.	The Consent Order was drafted by plaintiff's Counsel and the 4th Defendant's in-house lawyer for the defendants but the new acting Provincial Administrator claims that in-house lawyer Mr Kilian who acted without lawful authority allegedly commit the defendants in particular, the 4th defendants East New Britain Provincial Administration into such Consent Order with the huge financial liabilities. Finally, the State as the nominal defendant named in this case has legal procedural protocol on notice and guidelines to follow under the Claims by and against the State when a party instituted an action against the State as a party on the basis of vicarious liability under the Master and Servants principle under Contract Law. 

48.	It is in the interest of justice as dictated by the public importance and public policy in this case that this application is granted so that a proper trial through inter party hearing will allow parties to establish whether the Building Contract awarded to the plaintiff was proper and within financial limit of the Public Supply & Tender Board and Financial Instruction Manual under Public Finance (Management) Act. The trial process will vindicate those who have acted within the scope and guidelines of Public Supply & Tender Board and Financial Instruction Manual under Public Finance (Management) Act. 

49.	I remind myself of two minor remaining issues that are considered important which I shall address them now. The first one has been addressed and touched on by the defendants' counsel Mr. Saroa, who has raised some concern on procedural inconsistency on case numbers being used interchangeably that can be very futile. But the plaintiff's counsel Mr. Motuwe briefly responded and tried to explain the mishap that it was due to typographical error. And it can be cured through proper application to the court to amend the obvious errors that the case registered as WS No. 1233 of 2009 especially in the case of Consent Order was typed as WS. No.1234 and is changed to WS No. 1233. 

50.	This is just a cosmetic error that can be cured through manual cross out of last figure to change from (4) to (3). So the Consent Order case number should read W S. No. 1233 and should have the number (4) crossed out to insert figure (3). The second issue may be of some concern but both Counsel have not raised any major concern on it is the question on locus standi by the new acting Provincial Administrator Mr. Wilson Matava in this matter in passing. Mr. Matava is not named as a defendant in WS 1233 of 2009, but Mr. Akuila Tubal was as the former Provincial Administrator. Due to changes in the latest change with the Provincial leadership hierarchy in the East New Britain Provincial Administration the National Government through National Executive Council (NEC) has appointed Mr. Wilson Matava to replace Mr. Akuila Tubal the former Provincial Administrator in February 2013. By virtue of his appointment as the new acting Provincial Administrator, Mr. Wilson Matava rightly fits into the vacuum left by his predecessor Mr. Akuila Tubal who was named in the proceedings WS. No. 1233 of 2009 by the plaintiffs as first defendants. 

51.	I am satisfied that Mr. Wilson Matava by virtue of the office he holds as the acting Provincial Administrator for East New Britain Provincial Administration, does have locus standi or legal capacity to defend the interest of the 4th defendant as the principal defendants in this case, which he has already taken charge of that leadership from day one when he assume the office as the East New Britain Provincial Administrator in February 2013.

52.	Finally, the public interest and public importance of the case demands that outcome in this case through the proper trial process will hence public confidence in the Government systems in place at East New Britain Provincial Administration. The systems provide basic procedural guidelines as checks and balances in place that ensue and maintain high level of transparency and accountability by those who are in custodian of people's power that raises the level of integrity and good governance in all levels of government systems that are expected to discharge and deliver goods and services as per the annual corporate agency action plans. However, having addressed the issues that both counsel have argued before me, I am satisfied that the application to set aside the Consent Order has met all the requisite requirement as addressed in the case of Green v Green and therefore grant the application and set aside the Consent Orders of 18th February 2013 in its entirety forthwith. 

ORDER

53.	The Court made the flowing Orders:

1.	That the application to set aside the Consent Order of 18th February 2013 is granted.

2.	That the defendants are required to file particularised defence within four days from today and served on the plaintiffs before the next return date.

3.	That the matter is returnable on 18th October 2013 at 9.30am for mention.

4.	Cost be in the cause.

__________________________________________________________
Nelson Lawyers: Lawyers for the Plaintiff
Motuwe Lawyers: Lawyers for the Defendants