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JV PNG Investment Construction Ltd v Samson [2020] PGNC 394; N8628 (6 November 2020)

N8628

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 457 OF 2019

BETWEEN:
JV PNG INVESTMENT CONSTRUCTION LIMITED
Plaintiff

AND:
BENJAMIN SAMSON REGISTRAR OF TITLES DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Defendant

AND:
OSWALD TOLOPA, SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
POLRAVEN NO. 48 LIMITED AS TO ONE HALF SHARE AND SANAMO CONSTRUCTION LIMITED AS TO ONE HALF SHARE BOTH TRADING AS HOTEL PACIFIC INN LIMITED
Fourth Defendant

AND:
POLRAVEN NO 48 LIMITED
Fifth Defendant

AND:
SANAMO CONSTRUCTION LIMITED
Sixth Defendant

AND:
HOTEL PACIFIC INN LIMITED
Seventh Defendant

AND:
BANK OF PAPUA NEW GUINEA
Eight Defendant

Waigani: Miviri J
2020: 15^th September

PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive notice of Motion – Application for Dismissal – Abuse of Process – Judicial Review restrictive process – Order 16 rule 13 (13) (1) (a) (b) & 2 (a) – Four decision reviewed – Incompetency – Pleading matters not subject of leave granted – Motion to dismiss granted – proceedings dismissed as abuse of process – cost in the cause.

Cases Cited:

Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317

Schram v Papua New Guinea University of Technology [2012] PGNC 245; N4992

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Morobe Provincial Government v Tropical Charters Ltd [2010] PGNC 6; N3977

Lovika v Malpo [2019] PGSC 114; SC1895
Counsel:

N. Pilamb, for all Plaintiff
R. Diweni, for Fourth, Fifth, Sixth & Seventh Defendants
R. Bradshaw, for Eight Defendant
E. Bua, for the State

RULING

06^th November, 2020

1. MIVIRI, J: This is the Ruling on the fourth, fifth, sixth, seventh defendants notice of motion dated the 3^rd of September 2020 supported by the eighth, defendant with their notice of motion similarly supported by the State defendants all moving pursuant to Order 16 Rule 13 (13)(2) for dismissal of the Substantive notice of motion for Judicial review filed by the plaintiff on the grounds that:
   
   • (a) No leave was obtained by the plaintiff during hearing of the leave application under Order 16 Rules 3 (4) and 6 (2) of the National Court Rules to amend the Statement and or the grounds set out in the Application for Review filed following grant of Leave; and
     
   • (b) The piece of land described in the leave application as “allotment 3 Section 35 Boroko NCD” does not exist; and
     
   • (c) The plaintiff had never held any proprietary rights to the land described as “Allotment 3 Section 35, Boroko, NCD” on the basis that the National Housing Estate Limited never acquired a valid proprietary interest in the said piece of land to be able to transfer that interest to the Plaintiff
     
   • (d) Cost of the application and entire proceedings is paid by the plaintiff.
     
   • (e) The time of entry of this order be abridged to the time of Settlement of the same by the Registrar
     
   • (f) Such further or other orders as to the Honourable Court may be just, with liberty to apply.
     
2. Effectively what is prayed is summed by the eight defendant’s motion dated the 4^th September 2020, that pursuant to Order 16 Rule 13 (13) (2) (a) and (b) of the National Court Rules and the Courts inherent Jurisdiction to control the proceedings before it, the proceedings herein be dismissed for abuse of process and for incompetence.
   
3. And the material facts are that on the 12^th August 2019 the Plaintiff was granted Leave to apply for Judicial review of the decision of the First defendant made 24^th September 2018 and the 2^nd October 2018 to cancel entries to issue a State Lease and transfer State Lease to the 4^th -7^th Defendants. These decisions are in the Originating summons and the notice of application with the Statement in support filed. But from the Notice of Motion for the substantive Review filed after grant of leave other decisions of the First Defendant are added or included. These are in the following terms as per paragraph 7, “Any subsequent decisions, including but not limited to the change of description of the property and the grant of subsequent interests over whole or any part of the property...” The plaintiff was not granted leave to review any subsequent decisions of the First Defendant. And no leave has been given to him or order of the Court for him to expand and enlarge the leave granted to include any subsequent decisions of the First Defendant.
   
4. The issue is whether or not the pleadings as prayed by the Plaintiff is incompetent as motioned by the defendants that is it seeks “Any subsequent decisions, including but not limited to the change of description of the property and the grant of subsequent interests over whole or any part of the property...”
   
5. At the outset pleadings drive the cause of action that is instituted and the gate is not open free to everyone that passes through it. It is not an open forum open to busy bodies so much so that matters trivial and misguided can fall at will: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008). Judicial Review is restrictive and for very good reasons because, “Grant of leave for review of an executive decision or act is a prerequisite for the hearing of a claim for judicial review...The leave application itself is a guided process in which the question of grant or refusal is discretionary. This stems from the fact that the judicial review application is a restrictive process..The rationale as ..is simple: Judicial Review is not an open forum for busy bodies and other persons with misguided or trivial complaints over administrative errors to air their grievances” at para 9,”Schram v Papua New Guinea University of Technology [2012] PGNC 245; N4992 (6 December 2012)
   
6. There is therefore a need at the outset and basic to plead leave and the decision to be reviewed in the originating summons and the Notice of Motion. The decision to be reviewed and the jurisdictional basis for the court to hear should always be pleaded without which the application is not before the court. The date of the decision who made that decision because this will determine as whether the applicant has standing, whether the decision is of a public body or private whether there is delay or not and whether the issue(s) are prima facie arguable or not and this is clear by read of the Statement in support and the supporting affidavit: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 20140. In effect the decision to be reviewed must be particularized in the originating process.
   
7. Because amending will introduce new grounds and this court has shown reluctance to accept in Morobe Provincial Government v Tropical Charters Ltd [2010] PGNC 6; N3977 (22 March 2010) the reasoning is quite simple, “There are two things wrong with the proposed changes that now shift the blame for what originally happened; Firstly, the party blamed is not the party to this proceeding and it raises a separate action. The second point, which flows out from the first is that because it raises a separate matter, the plaintiff must go back and seek leave under Order 16 Rule 3 to apply for Judicial Review based on that ground. Leave earlier granted was based on different grounds that are now sought to be amended” The court dismissed the application to amend. This is the position in law and has seen out Lovika v Malpo [2019] PGSC 114; SC1895 (17 December 2019) objection was raised in similar inclusion of some grounds for which review was not granted, the application on competency was upheld because the decision to grant leave is not open ended and cannot be read as a licence to plead grounds of review at the pleasure of the applicant. It is specific and confined to the decision the subject of the leave granted no more no less.
   
8. In view of all this, I am not satisfied on the balance required that the plaintiff has discharged that his pleadings are open ended because “Any subsequent decisions, including but not limited to the change of description of the property and the grant of subsequent interests over whole or any part of the property...”is not carrying forward the subject granted leave initially. Any subsequent decisions are looking into the future for which leave has not been granted. Such will be heard de nova. And including but not limited to the change of the description of the property is again looking into the future. Because whether or not there will be a change to the description of the property is a matter into the future which is unknown and is not before the court. The decision is not before the court granting leave and cannot be the subject of the proceedings until so granted.
   
9. In my view what is underlying and fundamental is that the plaintiff was granted leave to review 4 decisions which are specified in his originating summons and should be forwarded in his judicial review notice of motion but is not inclusive of any change in the description of the property. In the way pleaded the plaintiff has placed before the court matters which are not before the court because it is now clear that Allotment 3 Section 35 Boroko does not exist because the title has been cancelled and it has been subdivided as per the affidavit sworn by Joseph Kobol of the 18^th September 2019 which brings this out particularly annexure “T” and “U”
   
10. In the totality, I am not satisfied that the action as it is presented in its form is within the law set out above. He has not swayed by the material he has placed to counter otherwise that what has been sought by the defendants is not the case. In law and with all the material set out above motion of the defendants sustains the balance over and above the plaintiff.
    
11. The formal orders of the court granted in accordance with Order 16 Rule 13 (13) (2) (a) and (b) of the National Court Rules are:
    
    • (1) The application of the defendants by their notices of motion is granted in the terms as pleaded.
    • (2) The Proceedings are dismissed as incompetent and abuse of the process of court.
    • (3) Costs will follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

Mel & Henry Lawyers: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for the State

Diwenis Lawyers: Lawyers for Fourth, Fifth, Sixth & Seventh Defendants

Bradshaw Lawyers: Lawyers for the Eight Defendant