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Uriap v Rakubana Development Pty Ltd [2013] PGNC 308; N5456 (13 November 2013)

N5456

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 648 OF 2008

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW PURSUANT TO ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN:

BERNARD URIAP for and on behalf of members of RONGOL CLAN of HIMAU & PORONBUS VILLAGES, EAST COAST NAMATANAI
Plaintiff

AND:

RAKUBANA DEVELOPMENT PTY LTD
First Defendant

AND:

TUTUMAN DEVELOPMENT LTD
Second Defendant

AND:

RAGA KAVANA, in his capacity as the REGISTRAR OF TITLES
Third Defendant

AND:

HON. PUKA TEMU, in his capacity as the MINISTER FOR LANDS & PHYSICAL PLANNING
Fourth Defendant

Kokopo: Oli, AJ
2013: 23rd September, 13th November.

CIVIL JURISDICTION - PRACTICE & PROCEDURE –Application by 2nd Defendants' to dismiss the entire proceedings for want of prosecution – Due to undue delay in prosecuting the matter – Or in the alternative the matter should be dismiss – For being irregular – Or for being an abuse of process

CIVIL JURISDICTION - PRACTICE & PROCEDURE –Application by 2nd Defendants' to dismiss the entire proceedings – Matter has been settled through Consent Order between Plaintiffs and 1st Defendants' – Notice of Discontinuance of the proceedings herein filed – Matter considered as withdrawn from the civil active track - Application refused

Cases Cited:

Juffa v Hein [2010] PGNC 200; N4267 (14th December 2010)
Tarsie v Ramu Nico Management (MCC) Ltd [2010] PGNC 144; N4142 (24th September 2010)

Counsels:

Wesley Donald, for the Plaintiffs
Philip Tabuchi, for the 2nd Defendant

RULING

13th November, 2013

1. OLI, AJ: This is the Second Defendants' Notice of Motion filed on 15th August 2013 supported by his own sworn affidavit with extract submission filed also on 15th August 2013. In short the orders sought (after the event of Consent Court Order of 17th August 2012) in the Notice of Motion are three-fold and in the alternative. It seeks the following:
   
   • (i) That the herein proceedings be dismissed for want of prosecution of alternatively;
   • (ii) That the entire proceedings be set aside and quashed for being irregular; and
   • (iii) That the proceedings be dismissed for being an abuse process.
   • (iv) The second defendant also seeks costs on a solicitor/client basis.
     

BACKGROUND

2. The Plaintiff files an Originating Summons against the defendants and claims in the Originating Summons the following:
   
   • (a) An order in the nature of certiorari to remove into this Court and to quash a decision of the Third Defendant to grant a 99 year lease to the First Defendant and 40 year sub lease to the Second Defendant over the area known as DANFU TRP EXTENSION AREA more particularly described as State Lease Portion 871 C Volume 17 Folio 016, Dolomakas, Namatanai, New Ireland Province on the basis that the First Defendant is an unregistered company without capacity in law to own, deal with or dispose of land and further that the grant was contrary to the procedure set out under Section 11 of the Land Act 1996.
     
   • (b) A declaration that the first Defendant is an unregistered entity or company to own, deal with or dispose off property including land and that the purported grant of a 99 year lease to it by the Fourth Defendant and the registration of such grant by the Third Defendant in relation to the DANFU TRP EXTENSION AREA is invalid and of no effect.
     
   • (c) A declaration that the Second Defendant has at no time ever acquired any legal title or interest by way of a 40 year sub lease from the First Defendant in relation to the DANFU TRP EXTENSION AREA.
     
   • (d) A declaration that all bona fide and customary landowners constituted by membership to the various clans within the said DANFU TRP EXTENSION AREA such as the Plaintiffs RONGOL have never consented for their respective customary lands to be converted to a single State Lease back arrangement nor for a grant to be made to the First Defendant for a 99 year Lease or a 40 year lease to the Second Defendant over their lands.
     
   • (e) A declaration that at no time have members of the Plaintiffs RONGOL clan given any consent for all their customary lands which are located within the said DANFU TRP EXTENSION AREA especially land known as KANDAMAU to be converted to form part of a single State Lease under the Lease Lease back arrangement nor for a grant to be made to the First Defendant for a 99 year lease or a 40 year sub lease to the Second Defendant over their lands.
     
   • (f) A declaration that the purported grant of 99 year lease to the first Defendant and a 40 year sub lease to the Second Defendant by the Fourth Defendant and registration of such grants by the Third Defendant was done contrary to the specific requirements set out under section 11 of the Land Act 1996 and that the grant is therefore void and of no effect in law.
     
   • (g) An order directing the Third Defendant to set aside the title over the area known as DANFU TRP EXTENSION AREA, more particularly described as State Lease Portion 871 C Volume 17 Folio 016, Dolomakas, Namatanai, New Ireland Province as if it were never converted from customary land to registered land.
     
   • (h) Cost of the proceedings.
     
   • (i) Such further or other orders as deemed fit by the Court.
     

MOTION BY SECOND DEFENDANTS

3. The brief history of the case reveals that the Plaintiff and the First Defendant through their lawyers entered into a CONSENT ORDER before the National Court at Kokopo on 17th August 2012 signed by both Counsels Mr. Wesley Donald of Donald & Company Lawyers for the Plaintiff and Mr. Neserewa Motuwe of Motuwe Lawyers for the First Defendant and witnessed and duly signed before His Honour Lenalia J, and His Honour also signed the Consent Order that became the Court Order that effectively bring the matter to its finality. The Second defendant in this Consent Order of 17th August 2012 did not feature nor was part of the Consent Order in this matter. The second defendants since the issuance of the said Consent Order has not taken any issue nor challenged its validity until 15th August 2013, some (11) months (18) days later that second defendant through their counsel Mr. Philip Tabuchi filed a Notice of Motion to dismiss the proceedings on three fronts:
   
   1. The proceedings be dismiss for want of prosecution given the long, unexplained delay which is prejudicial and causing injustice to the second defendant; and or in the alternative,
      
   2. The proceedings be dismissed for being irregular because the Originating Summons does not seek leave and leave was never granted contrary to the Orders taken out by the Plaintiffs'; and,
      
   3. The proceedings be dismissed for being an abuse of process because the Originating Summons fails to satisfy the legal prerequisite for class action.
      
4. The Consent Court Order between plaintiff and first defendant was the substantive relief that plaintiff was seeking from the Court in this proceeding and this was achieved through the Consent Court Order endorsed by Court on 17th August 2012. This was conditional to first defendant having to perform and discharge the full terms and conditions of the Consent Order contained in paragraph (7). The first defendant did comply with its commitment in the Consent Court Order and effectively discharge documents required by plaintiff were obtained and released by third defendants and upon receipt of the same the plaintiff on 22nd August 2013 filed notice of discontinuance of the whole of the proceedings as part of its terms and conditions of the Consent Court Order. I now will turn to the Consent Court Order of 17th August 2012 and reproduce the Consent Court Order for purposes of completeness issued by Court between Plaintiff and the first Defendant is hereunder reproduced as follows:
   

PAPUA NEW GUINEA

IN THE NATIONA L COURT )

O.S NO. 648 OF 2008

OF JUSTICE AT KOKOPO ) In the matter of an application for Judicial Review pursuant to Order 16 of the National Court Rules

BETWEEN ;

BERNARD URIAP and on behalf of RONGOL CLAN of Himau Village & Poronbus Villages, East Coast Namatani.

Plaintiff

AND:

RAKUBANA DEVELOPMENT PTY LTD

First Defendant

AND:

TUTUMAN DEVELOPMENY LTD

Second Defendant

AND:

RAGA KAVANA, In his capacity as the Registrar of Titles

Third Defendant

AND:

HON. PUKA TEMU, In his capacity as the Minister for Lands & Physical Planning Fourth Defendant

CONSENT ORDER

The Court hereby Orders by Consent of the First Defendant and the Plaintiff that:-

1. Orders 2 to 11 granted by the Court on 7th November 2008 be set aside the Plaintiff and the First defendant having reached agreement to settle the matter on agreed terms.
   
2. The first defendant Company which holds a 99 year Agricultural Lease more particularly describes as Portion 871 C, Dolomakas, New Ireland Province hereby agrees to release to the Plaintiff and hid Clan through their landowner company Tikeikut Development Limited the land area within the said Title referred in the schedule as Portion 1 covering an area of 15,700 hectares for the reason that the said land belongs to the Plaintiff and his Clan and that the first defendant admits and concedes that the Surveyors engage at that time to survey customary land belong to the owners of the First Defendant for the purpose of registering the land had inadvertently included the said land area in the survey plan whereas the consent of the Plaintiff was never sought and no authority for such inclusion ever given by the Plaintiff on behalf of his Clan who rightfully own the said Portion 1 of the land by custom.
   
3. The first defendant admits that if this mistake was not made the proceedings herein would not have arisen and consent that it will take all the necessary steps from the date of this Orders to surrender its Land Title referred to herein and described as Portion 871 C, Dolomakas, New Ireland Province to the Registrar of Titles and to advise the Registrar of Land Titles upon surrender of the Title to have two (2) separate Titles issued, the first in relation to Portion 1 to Tikeikut Development Limited and, the second in relation to Portion 2 to Rakubana Development Corporation Limited.
   
4. The First Defendant therefore hereby consents that pending the surrender and re-issue of two separate Titles to Tikeikut Development Limited and Rakubana Development Corporation Limited respectively in the manner set out in paragraph 3 above and as early as the date of the Orders herein it shall allow Tikeikut Development Limited and its agent or servants, associates or development partners uninterrupted access to enter onto the portion of land given back to the Plaintiff to do whatever deemed best on the land to serve the interests of his Clan and its members.
   
5. The First Defendant also consents to pay all land lease and any other Government charges on the land to be given back up to the point of surrender of the Title and be responsible for any accruing rentals or charges that remained unpaid immediately prior to the date of this consent orders.
   
6. The First Defendant agrees and consents to pay Plaintiffs costs relating to and incidental to the proceedings herein to the time of discontinuance of the proceedings which cost are to be taxed if not agreed.
   
7. Upon issuance of a separate Land Title by the Registrar of Titles Tikeikut Development limited in relation to Portion 1 of the land now described as Portion 871 C, Dolomakas, Namatanai, New Ireland Province, the Plaintiff consents to file a Notice of Discontinuance for the whole proceedings herein.
   
8. Costs of this application be the Plaintiff's cost in the cause.
   
9. Time for entry of the orders be abridged to the time of settlement by the Registrar which shall take effect forthwith.
   

The Plaintiff hereby consents to the terms of the above Orders.

SIGNED:....(Wesley Donald)................................................................................

Wesley Donald of DONALD & COMPANY LAWYERS for the Plaintiff.

The First Defendant consents to the terms of the above orders

SIGNED;....(Neserewa Motuwe).............................................................................

Neserewa Motuwe of MOTUWE LAWYERS for the First Defendant

Endorsed by the Court this 17th day of August 2012.

SIGNED:....(Lenalia J).............................................................................................

HIS HONOUR LENALIA, J

ISSUE

5. The pertinent issue is whether the matter can be reopen when the plaintiff has formally file on 22nd August 2013 notice of discontinuance of whole of the proceedings under Order 8 Rule 61 of the National Court Rules in compliance with the Consent Court Order of 17th August 2012 between Plaintiff and First Defendant.
   

LAW

6. The Law that governs the Notice of Discontinuance is provided under Order 8 Division 5 Rule 61 of the National Court Rules it reads:
   

Order 12 Rule 61 Discontinuance (21/2)

(1) A party making a claim for a relief may discontinue proceedings as far as concerns the whole or any part of any claim for relief by him-

• (a) Where the pleadings are not closed – without leave or consent; and
  
• (b) Where judgment has not been entered – with the consent of all other parties; and
  
• (c) At any time – with the leave of the Court.
  

(2) A party making a claim by originating summons may, with the leave of the Court, discontinue the proceedings at any time so far as concerns the whole or part of the claim.

7. In this case the plaintiff exercises its legal right under Order 12 Rule 61 (1 (c)) & (2) of the National Court Rules to discontinuance of the proceeding. The Plaintiff enter into a Consent Court Order with First Defendant in compliance with Order 8 Rule 61 (1) (c) of National Court Rules on 17th August 2012, with the clear intention to settle out of court on agreed terms and conditions that were stipulated in the Consent Court Order. That is, 1st Defendant must produce two separate State Titles; viz one to plaintiffs Landowner Company and another made out to first defendant Landowner Company out from the existing single State Title held by first defendant Landowner Company, as per the Consent Court Order and the Plaintiff will in return file notice to discontinue the proceedings at the Registry on this matter. I have the liberty to reproduce paragraph (7) in the Consent Court Order and I restate paragraph No. (7) hereunder as follows:-
   

"Paragraph No. (7) Upon issuance of a separate Land Title by the Registrar of Titles to Tikeikut Development limited in relation to Portion 1 of the land now described as Portion 871 C, Dolomakas, Namatanai, New Ireland Province, the Plaintiff consents to file a Notice of Discontinuance for the whole proceedings herein."

8. The plaintiff having the Court endorse Consent Order on 17th August 2012 and by having the terms and conditions of paragraph (7) incorporated in the substantive Consent Court Order was in fact Court granting the leave to discontinue the proceeding consistent with Order 8 Rule 61 (2) of the National Court Rules. This was in turn to impose on plaintiff and first defendant to perform the agreed terms and conditions of settlement as condition precedent to plaintiff issuance of the notice of discontinuance of the whole proceedings against the defendants, including the second defendants as well.
   
9. The First Defendant, as part of its commitment under the agreed Consent Court Order did obtain on 16th August 2013 from the Department of Lands & Physical Planning through the Office of the Registrar of Titles, two separate Titles one to Tikeikut Development Limited a new Title known as Portion 872 C Cat. No. 21/378 (Danfu Extension 16, 110 ha) Dolomakas, Namatanai, New Ireland Province of the land previously known and described as Portion 871 C, Dolomakas, Namatanai, New Ireland Province. The other new Title was issued as Portion 873 C, to Rakubana Development Corporation Limited. Dolomakas, Namatanai, New Ireland Province, to the first defendant landowner company.
   
10. The Court grants leave to the Plaintiff in the same Consent Court Order to file a Notice of Discontinuance of the proceedings herein on the condition that First Defendant comply with the terms and conditions of paragraph (7) of the Consent Court Order of 17th August 2012. The First defendant did obtained two separate Titles, first Title Portion 872 C to Plaintiff's landowner company Tikeikut Development Limited and the second Title Portion 873 C to Rakubana Development Corporation Limited to first defendant landowner company on 16th August 2013, and by reason of this event as a condition precedent to the Consent Court Order; the plaintiff is legally obliged to file on 22nd August 2013 a Notice of Discontinuance of the proceedings herein against the defendants in this matter.
    
11. The filing of notice of discontinuance has the effect of total withdrawal of the matter from further court proceedings. In the matter of Juffa – v - Hein [ 2010] PGNC 200; N4267 (14th December 2010); the Plaintiff, the Commissioner of Papua New Guinea Customs Service, seeks declaratory relief and the defendant be found guilty of breaches of certain sections of the Customs Act. The proceeding is a customs prosecution brought under Part xiii Customs Act. The Plaintiff sought leave to discontinue the proceeding when the trial of the proceeding was to commence. The application for leave to discontinue was not opposed by the defendant subject to it being on terms. This is the decision on that application. His Honour Hartshorn J held that:
    
    • (1) It is open to court to impose terms upon the plaintiff for it to discontinue this proceeding notwithstanding that the plaintiff has powers conferred by Statute to bring a prosecution such as this proceeding.
      
    • (2) Terms should be imposed which will prevent loss of right or injustice to the defendant.
      
    • (3) Leave is granted to the plaintiff to discontinue this proceeding on the term that the plaintiff, his officers and agents are permanently restrained from commencing or prosecuting the same or similar proceeding as this proceeding OS 548 of 2010 against the defendant.
      
    • (4) The plaintiff shall pay the costs of the defendant of and incidental to this proceeding to be taxed if not agreed, pursuant to s. 175 of Customs Act.
      
12. The above case clearly demonstrates the Plaintiff's right and prerogative to consider whether to continue with the matter to its finality with an obvious outcome of a judgment in his favour or dismissal against him as the case may be. The plaintiff exploring the option of early termination in the matter appears to be embracing the notion of win/win outcome through effective mediation process as demonstrated in this case. But from effective Case Flow Management and case administration perspective what it means is that through effective mediation process where parties settle amicably out of Court, there is one less case out of the civil trial track.
    
13. When plaintiff address this option of discontinuance the proceedings, it always comes with a price; and that is Plaintiff must give something as a trade off in order to advance his part of the bargain, that enhances both parties interest with specific amicable terms and conditions of settlement as we see in the case of Juffa – v – Hein. In this case the plaintiff agree to withdraw the charge against the defendant but still has the prerogative to exercise its statutory powers where necessary and defendant agreed on leave application for discontinuance on the condition that plaintiff's officers or its agent must not recommence the same charge again that has been withdrawn against the defendant and plaintiff agree to meet the costs incidental to the proceedings. The Court grants the leave to discontinue the proceeding.
    
14. The same legal procedural process on application for leave for discontinuance is reflected in another matter of Tarsie – v- Ramu Nico Management (MCC) Ltd [2010] PGNC 144; N4142 (24th September 2010). In this case the Plaintiff, who commenced proceedings six months previously, applied to the court under the National Court Rules, Order 8 Rule 61 for leave to discontinue the whole of their claim for relief. The defendants consented to the application and did not seek costs. His Honour Cannings J held that:-
    
    1. If a plaintiff wishes to discontinue proceedings and their application for leave to do so is made with the consent of all defendants, leave should generally be granted, it being in the interests of justice to encourage parties to reach out-of-court settlement of their disputes.
       
    2. To refuse leave to discontinue would constitute a restriction on a plaintiff's right to freedom based on law under Section 32 of the Constitution and the right to the full protection of the law under Section 37 (1) of the Constitution; and such a restriction ought to only be imposed in extreme circumstances.
       
    3. Leave was granted on terms that a notice of discontinuance be filed by each of the plaintiffs within three days and that the parties bear their own costs of the entire proceedings.
       
15. The above matter is synonyms to the case on foot; however, the minor difference in this case is that the second, third and fourth defendants were never part of the Consent Court Order of 17th July 2012 that becomes the Court Order that discontinues the whole proceedings in this matter. The plaintiff Counsel did not address the Court on this point and the Counsel for second defendant appears to have taken no particular issue on it. But my reading of the file reveals that from filing of this proceeding on 20th October 2008, the Court during its Status Conference on 7th November 2008 grant the leave for Judicial Review and made the following Orders that:-
    
    1. Leave to apply for Judicial Review is granted.
       
    2. The Notice of Motion and supporting affidavits under Order 16 Rule 5 (1) of the National Court Rules shall be filed and served by 24th November 2008.
       
    3. Rakubana Development Corporation Limited is to be served by 24th November 2008.
       
    4. Proof of service shall be filed by 24th November 2008.
       
    5. The third and fourth defendants shall produce to the Court a true copy of the Lease acquired by the State pursuant to Section 11 of Land Act 1996 in respect of the land contained in the State Lease Volume 17 Folio 16 over Portion 371 C Dolomakas.
       
    6. Defendants shall file and serve any affidavits on which they rely within 30 days of the Notice of Motion and the affidavits in support been served on them.
       
    7. The plaintiff shall file and serve any affidavits in reply within 30 days of service of the affidavits by the Defendants.
       
    8. Each party will file extract arguments by the last Friday of January 2009.
       
    9. The plaintiff shall compile and serve the Review Book by the first Motion day in February 2009.
       
    10. The matter is listed for directions hearing at the first Motions day in February 2009.
        
    11. Costs of today are in the cause.
        
16. I take liberty to reproduce the above Status Conference direction by the Court on 7th November 2008 for parties to perform certain but specific task to be filed in Court on specific return dates in 2008. The Court directions to plaintiff and first defendant that also incorporate separate Court Orders to 3rd and 4th defendants to perform their Statutory duties has effectively pave the way forward for the parties to prepare toward setting a trial date as observed in the above Court Order of 7th November 2008. However, the consequential effect of this Court Order has translated into some tangible outcomes that allow plaintiff and first defendant to enter into Consent Court Order of 17th August 2008. The said Consent Court Order really address the issue in relation to the State Lease Title in respect to Portion 371 C held by first defendant where second defendant is the client of the first defendant under separate sub lease arrangement purely based on business.
    

17. The plaintiffs' customary landowners has a real practical and legal issue with Portion 371 C held by first defendant' s landowner company. This is because they were never consulted nor have consented to their customary land being included in Portion 371 C held by the first defendant customary landowner group on a State Lease – Lease back deal through the office of the third defendant under the guise of Special Agriculture and Business Lease (SABL).

18. The plaintiff instituted this proceeding which was to seek the Courts intervention to direct first defendant to surrender the State Lease Title on Portion 371C to third defendant to re-issue two separate Titles to Portion 1 to Plaintiff landowner company Tikeikut Development Limited and Portion 2 to first defendant landowner company Rakubana Development Corporation Limited. These two new Titles were created out from Portion 371 C State Lease Title issue separate Title to two landowner companies of plaintiff and first defendant as per the Consent Court Order. The Consent Court Order of 17th August 2012 consolidates these outcomes with the end in mind that plaintiff and first defendant agree to discontinue the proceedings herein against the defendants respectively.

19. The third defendant perform its statutory powers as per the Consent Court Order and did re-issue two separate Titles on 16th August 2013 and State Lease Title granted by the fourth defendant in performing its statutory powers to Portion 372 C to plaintiff landowner company Tikeikut Development Limited and second Portion 373 C to first defendant landowner company Rakubana Development Corporation Limited. The above preliminary eventshas shown that the involvement and participatory role played by parties in performing their statutory duties clearly demonstrate that the substantive matter was between plaintiff and first defendants in this matter.

20. The pertinent issue then is whether the motion filed by second defendant on 15th August 2013 can still reopen the plaintiffs' case.

21. I had the opportunity to hear Counsel for the second defendants who advance legal arguments in support of the motion and submit that the matter should be dismissed for want of prosecution and abuse of process.

22. The plaintiff' s counsel briefly replies to the motion and submit that the matter has been discontinued through Plaintiff filing the Notice of Discontinuance on 22nd August 2013. The counsel for plaintiff further submits that if second defendant finds issue with Consent Court Order issued by Court on 17th August 2012, he has an option to challenge it through review process by way of appeal.

23. The motion by second defendant comes after (11) months (18) days is much to be desired of and one that borders on abuse of process. It seems to me that second defendants are not aware of the Consent Court Order of 17th August 2012. However, whatever the reason may be held by the second defendants, my perusal of Plaintiffs claim and the content of the Consent Court Order is very clear in that the second defendant is the beneficiary client to the first defendant who sub lease the said property for (40) years from the first defendant over Portion 371 C land in question.

24. The 3rd and 4th defendants are nominal defendants and 3rd defendant, in particular is the office that facilitate Tenure Conversion of Customary Land under s. 11 Land Act to State Lease such as Special Agriculture and Business Lease (SABL) Title to Landowner Companies. The 4th defendant is the nominal defendant but in his official capacity as the Minister responsible for Department of Lands and Physical Planning (DLPP) who exercise statutory powers under Land Act. In this case the first defendant is the principal defendant, who has (99) year lease over Portion 371 C land, who allow the second defendant to sub lease the Portion 371 C land, where plaintiffs clan members customary land was part and parcel of Portion 371 C land without their consent.

25. The plaintiff claim that they did not give permission to first defendant to sub lease Portion 371 C land to second defendant for (40) years that includes plaintiff clan's customary land as well. The plaintiff and the first defendant with good conscious struck a deal that result in the Consent Court Order of 17th August 2012 was concluded. This Consent Court Order pave the way for the issuance of two separate State Titles under Portion 371 C State Title, which was surrendered and new separate rural survey maps were done of the two portions of customary land and re-issue of two separate State Titles to Portion 372 C to plaintiffs' Company Tikeikut Development Limited and Portion 373 C to first defendant company Rakubana Development Corporation Limited in compliance with the Consent Court Order of 17th August 2012. The plaintiff having received the two separate State Titles from the first defendant files on 22nd August 2013 the notice of discontinuance of the proceedings herein, also in compliance with the Consent Court Order.

26. The second defendant's motion to have the matter dismissed for want of prosecution will serve no useful purpose now when plaintiff has already effectively dealt with the matter and have it settled with the first defendant through the Consent Court Order of 17th August 2012. The plaintiff filed notice of discontinuance on 22nd August 2013 has effectively discontinued the proceedings herein has finally withdrawn the matter before the Court and defendants consequently are each and severally discharge forthwith. The Court therefore cannot deal with the matter that has been duly discontinued through the due process of the law. The plaintiff cannot be made to go against his will and decision to discontinue because a party does not agree for leave to discontinue. To do so will be going against his constitutional rights. I respectfully adopt and re-echo His Honour Cannings J findings in the case of Tarsie – v- Ramu Nico Management (MCC) Ltd that has assisted me greatly to arrive at the decision, I do so now, in this case.

27. I therefore find this case, somewhat exceptional to the normal cases where leave sought to discontinue proceedings through the express consent by all parties in the proceeding. However, in this case the 2nd, 3rd & 4th defendants did not participate in the Consent Court Order settlement package that may have prejudicial and injustice effect on them. However, I am of the view, that prejudicial and injustice effect it may have on them due to the discontinuance of the proceedings will be very minimal or even none at all. I say this; in view of the stakeholders interest they have on the proceedings is very nominal. The second defendant is the beneficiary client to the first defendant who had sub lease agreement with first defendant on previous portion 371 C. Its business interest with first defendant is not in any way being denied or disrupted with the recent turn of events that result in the issuance of two separate portions with separate State Lease Titles. It can still maintain the sub lease previous business relationship with the new portion 373 C being issued to the first defendant landowner company.

28. The 3rd and 4th defendants are merely nominal defendants being included by nature of their office they hold and specialised statutory duties and powers they perform under their respective enabling legislations in particular s.11 of Land Act. This was clearly demonstrated in the re-issuing and granting of two separate new State Lease Titles issued as Portion 372 C and Portion 373 C respectively by 3rd and 4th defendants accordingly.

29. Having considered all of the above foregoing in this case that I am satisfied that the motion by second defendant is ill conceived and therefore refused the motion forthwith with cost incidental to this application, if not agreed be taxed.

_________________________________________________________________
Donald & Company Lawyers: Lawyer for the Plaintiff
Young & Williams Lawyers: Lawyer for the Defendants