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Tupou v Tolopa [2020] PGNC 133; N8351 (4 June 2020)

N8351

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 790 OF 2018

SAMUEL OFEINA’HELOTU TUPOU
Plaintiff

V
OSWALD TOLOPA, Acting Secretary of the Department of Lands and Physical Planning
First Defendant

And
BENJAMIN SAMSON, Acting Registrar of Titles of the Department of Lands and Physical Planning
Second Defendant

And
SIMON MALU
Third Defendant

And
HON. JUSTIN TKATCHENKO Minister of Lands and Physical Planning
Fourth Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Miviri J
2020: 04^th June

PRACTISE & PROCEEDURE – Judicial Review & appeals – notice of Motion – Defendant Application for adjournment – Special Fixture – Plaintiff opposition – Order 4 Rule 49 (17) NCR – Striking out dismissal – Judicial discretion – Rules not means to an end – motion denied – cost in the cause.

Cases Cited:

Karl Paul v Aruai Kispe and the Regional Manager PNG Forest Authority Lae and PNG Forest Authority (2001) N2085

Counsel:

S. Soi, for Plaintiff
A. Kimbu, for Third Defendant
K. Kipongi, for First, Second, Fourth and Fifth Defendants

RULING
04^th June, 2020

1. MIVIRI, J: This is the Ruling on the application of the 3^rd Defendant to adjourn its motion filed 27^th November 2019 document number 51 for a special fixture as it seeks under Order 8 and 12 Rule 1 and section 155 (4) of the Constitution for dismissal of this proceedings instituted by the Plaintiff.
   
2. Counsel seeks that on the 26^th May 2020 parties were to have argued the matter but did not because of the unavailability of the court. Because of the gravity of the motion and that it would take more than 20 minutes a special fixture be accorded to hear all.
   
3. The motion has been opposed by the Plaintiff contending on the basis of Order 4 Rule 49 (17) that the motion maybe dismissed because it has not been prosecuted for one month. Or after it has been adjourned twice after filing.
   
4. The first, second, fourth, and fifth defendants have sided with the argument by the 3^rd defendant that the motion is adjourned and special fixture accorded. Because it has not been delayed by fault entirely upon the defendants. All parties were before the court when it was set for the 26^th May 2020 but could not proceed no fault of the parties.
   
5. In the light of that fact it would not be trite to dismiss by the application of Order 4 Rule 49 (17) because the third defendant is not at fault that the motion was not heard from the last date 26^th May 2020 when it was set for hearing. In fact none of the parties on either side are at fault. True the matter is long outstanding since 26^th October 2018 but it has history in the file to have been attended to up to the last date set out above. It has not been demonstrated by material that the fault of the matter rests entirely with the third defendant.
   
6. The motion sought out by the third defendant is substantive and seeks finality to the proceedings the rules must not deny the seat of Justice against parties before the court. There must be very clear basis in evidence and law to warrant denial by reliance on the rules. Here the circumstances do not warrant that application of the plaintiff be accorded. He has relied on the rule without bringing forth material upon to sway. The history of the file does not depict the course he argues rather than contrary. The simple fundamental is what Justice Injia (as he then was) said in Karl Paul & Aruai Kispe and the Regional Manager PNG Forest Authority Lae and PNG Forest Authority (2001) N2085 delivered on 17^th April 2001 in Lae:
   

"The Court has wide powers to control the conduct of proceedings before it, subject of course, to jurisdictional limitations fixed by statute. It is in the inherent jurisdiction of the Court to take firm control of the proceedings to ensure that the business of the Court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case."

7. It would be not the case given here with the facts and circumstances as they are to heed the Plaintiff that adjournment be refused the third defendant and the other defendants. The court will be firm to take control of its proceedings but will not without material evidence as here. Consequently, the motion of the plaintiff is not made out and is denied with costs in the cause. The 3^rd Defendant together with all other defendants are granted the adjournment sought. This is a long outstanding matter going into three years now and therefore must be brought to its finality. Justice accorded by law to whomsoever is favoured given the facts and circumstances on the balance required.
   
8. The matter will be accorded a special fixture which is fixed for Thursday 18^th June 2020 at 9.30am.
   
9. Costs will be in the cause.
   

Orders Accordingly.
__________________________________________________________________
Soi & Associates: Lawyers for the Plaintiff Applicant
Kimbu & Associate Lawyers: Lawyer for the Third Defendants
Office of the Solicitor General: Lawyers for all other Defendants