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Jaro Investment Ltd v Ane [2020] PGNC 395; N8629 (6 November 2020)

N8629

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 790 OF 2019

BETWEEN:
JARO INVESTMENT LIMITED
Plaintiff

AND:
ALA ANE IN HIS CAPACITY AS THE ACTING REGISTRAR OF TITLES
First Defendant

AND:
BENJAMIN SAMSON IN HIS CAPACITY AS THE ACTING SECRETARY FOR THE DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
YAN GUI PING
Fourth Defendant

Waigani: Miviri J
2020: 15^th September, 6^th November

PRACTICE & PROCEDURE – Judicial Review & appeals – notice of Motion – Application for leave to amend – Order 16 rule 3 (2) (a)
Statement – substantive Notice of Motion – Order 16 rule 5 (1) – discretionary – amendment granted – No prejudice to defendants – determination of issues before court –material relied sufficient – Leave granted to amend – cost in the cause.

Cases cited:

New Guinea Company Ltd v Thomason [1975] PNGLR 454
Counsel:

L. David, for Plaintiff
G. Sikre, for Fourth Defendants

RULING

06^th November, 2020

1. MIVIRI, J: This is the Ruling on the fourth defendants notice of motion of the 15^th June 2020 seeking:
   
   • (a) Pursuant to Order 16 rule 13 (6), (4) (f) of the National Court Rules the plaintiff be granted leave to further amend its order 16 Rule 3 (2) (a) Statement and Its Order 16 Rule 5 (1) notice of motion within 7 days of the date of this order.
     
   • (b) Costs be in the cause
     
2. He relies on the affidavit of Herman Joseph Leahy filed the 12^th June 2020 for the basis to so amend. That since the filing of the statement and the notice of motion a letter exhibit “D” in the affidavit of Ala Ane has come to light which effect is to seek leave of the court to amend the Statement and substantive notice of motion accordingly. Because it appears from that letter that there is duress and impropriety that must be properly addressed in the review proper as it seeks by the payment of moneys into the account of the National Housing Corporation withdrawal of the subject title now held by the Plaintiff and reissue to Mao Sen Investment Limited for consideration of K500, 000.00 already paid by instalments into the account of the National Housing Corporation.
   
3. In my view the grant of leave to amend is discretionary. Here it would allow amendment to incorporate this fact so that it is properly addressed in the hearing of the review. It would not cause injustice nor would it prejudice the defendants and it is proper and meets the purpose to determine the issue at heart in this judicial review proceedings the title to the subject property. I hold that it is likened to seeking amendment in a statement of claim and on point in this regard is New Guinea Company Ltd v Thomason [1975] PNGLR 454 (23 December 1975). And the principles applicable there are applicable here in the determination here.
   
4. And reading Order 16 Rule 4 it is discretionary that the Court hearing an application for leave may allow the applicant’s statement to be amended whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit.”
   
5. Here the totality is to grant the application to amend as pleaded in the Notice of motion set out above. Accordingly, it follows that the above directions are now issued following and pursuant to expedite the matter;
   
   • (1) The Plaintiff’s motion is granted in the terms pleaded.
   • (2) Leave is granted to the plaintiff to amend its Order 16 Rule 3 (2) (a) Statement by the addition of new or amended grounds for relief and for leave to amend its notice of motion filed under Order 16 rule 5 (1) of the National Court Rules.
   • (3) The parties shall file and serve any affidavits they wish to rely on in the trial of the substantive judicial review proceedings on or before close of business Monday 16^th November 2020.
   • (4) The plaintiff shall circulate to the other parties for review and comment a draft Statement of Agreed and Disputed Facts (SADFIT) Issues for trial on or before Friday 20^th November 2020.
   • (5) The defendants shall comment on the SADFIT by or before the Friday 27^th of November 2020.
   • (6) The plaintiff shall settle and file the SADFIT on or before the Monday 7^th of December 2020.
   • (7) The plaintiff shall forward to the defendants a draft index to the Review Book by or before Monday the 14^th of December 2020.
   • (8) The Defendants shall return the draft Index to the Review Book by or before Monday the 21^st of December 2020.
   • (9) The plaintiff shall compile and circulate a Review Book for certification by all the parties to the proceedings on or before Friday the 8^th of January 2021.
   • (10) The Matter returns to Court on the Monday the 1^st of February 2021 for further directions or allocation of a trial date.
   • (11) Costs are in the cause.

Orders Accordingly.

__________________________________________________________________

Pacific Legal Group Lawyers: Lawyer for the Plaintiff/Applicant

Fiocco Nutley Lawyers: Lawyer for the Fourth Defendants