N8642
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 838 OF 2019

BETWEEN:
AMANAB 56 TIMBER INVESTMENTS LIMITED
Plaintiff

AND:
PAUL SAI’I, CHAIRMAN NATIONAL FOREST BOARD.
First Defendant

AND:
PAPUA NEW GUINEA FOREST AUTHORITY
Second Defendant

AND:
KINMAS INVESTMENT LIMITED
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2020: 24th September, 10th November

PRACTICE & PROCEDURE – Judicial Review & appeals – Application for Dismissal of proceedings – Order 16 Rule 13, Order 12 Rule 1 of NCR –  Section 155 (4) Constitution – No jurisdictional basis in Rules pleaded –  Materials relied do not advance without jurisdictional basis – balance not discharged – Motion denied – cost follow event.

Cases cited:
Takori v Yagari [2008] PGSC 3; SC905
Counsel:

J. Lome, for Plaintiff
S. Mitige, for the First & Second Defendants
B. Lai, for Third Defendant
R. Uware, for the Fourth Defendant
					RULING 
 10th November, 2020
1.	MIVIRI, J: This is the Ruling on the third defendants notice of motion of the 28th February 2020 to dismiss the entire proceedings pursuant to Order 16 Rule 13, Order 12 Rule 1 of the National Court Rules, “the Rules” and section 155 (4) of the Constitution because events since have overtaken to a stage where the continuation of the Judicial review proceedings will serve no utility in its maintenance. 

2.	This is discretionary upon the parties if indeed events have since overtaken and justice has come of nature. And here what the third defendant sees ought to have been seen by the plaintiff to simply hand up an application for leave to discontinue the proceeding and for each party to bear their own costs in the proceedings. If that is not the case, then there is a cause in the case not seen by the third defendant but seen by the Plaintiff upon which insistence is made to pursue the matter. It is his prerogative accepting what is there in the end. He will not be dictated in the way that he pleads his cause of action. He may plead the excised land or not but does it affect the decision at the end. In my view it would not seriously affect the proceeding to the extent seen by the third defendant.

3.	For the third defendant he must have the jurisdictional basis for the court under the rules of court to pursue and grant what he seeks. At the outset, the jurisdictional basis pleaded in the Notice of Motion document 31 dated the 24th February 2020 filed the 28th February 2020 is Order 16 Rule 13, and Order 12 Rule 1 of the National Court Rules. Submissions made are in reliance upon. The former by itself does not call for dismissal nor is it a basis for the dismissal of proceeding especially judicial review proceedings as is the case here. Reliance on it to argue competency does not advance the course of the third defendant pleaded. And coupled with Order 12 Rule 1 a general provision its application without any specifications upfront renders reliance on it futile for the applicant. The Jurisdictional pleadings tie a cause of action placed with the affidavit material relied will advance the course of the applicant. 

4.	Here the facts do not advance the course of the applicant if the basis in the rules and the law is not there for the pray. The affidavit of Lau Mang Koud sworn 24th February 2020 and filed the 28th February 2020 does not advance his motion. Because the motion draws on what is not there to move. Dismissal cannot be granted on the basis of Order 16 Rule 13 as that rule is very extensive. And the specifications designated for dismissal has not been invoked here. It is not the duty of the court to zoom in or focus on the particular rule for the case of any party. That would be analogous with descending into the arena of the conflict and to be clouded by the dust of the dispute. Neutrality demands an objective view of the matter called for the hands of Justice.

5.	There is no basis for the reliance of Order 12 Rule 1 because the application does not direct the specific application to enter such judgment. And such is not entered without the basis by the Rules. Making such order as required is a broad definition and dismissal of proceedings is heart to a cause of action. And the courts are reluctant and slow to unearth a litigant from the seat of Judgement without proper jurisdictional basis. There ought to be proper jurisdictional basis set because summary derailing should be beyond the balance of preponderance: Takori v Yagari [2008] PGSC 3; SC905 (29 February 2008). 

6.	Even if there was reasonable cause identifiable and apparent in the pray the third defendant makes, he is defeated by the jurisdictional basis he has pleaded. It would be pointless to consider the material in support in this regard the affidavit of Lau Mang Koud sworn 24th February 2020 and filed the 28th February 2020 without jurisdictional basis under the Rules of Court invoking to determine.

7.	The jurisdictional basis always demonstrated for dismissal is Order 13 (13) (2) (a) (b) of the Rules. It is not pleaded here and cannot be corrected by the court for the third defendant there is clear demarcation of the roles that the Court plays from the litigant. Independence and impartiality of the Court and justice done and seen to be done determines that as pleaded the third defendant has not discharged the balance, he seeks on the jurisdiction invoked. Alternatively Order 12 Rule 40 Frivolity is another basis open to the third defendant not pleaded therefore nothing is derived from the pray.

8.	The plaintiff has a binding Forestry Development Project relating to the Amanab Blocks 5 & 6 Forest Management Agreement in Sandaun signed 16th May 2007 for the period of 35 years. That is a binding document in law and has consequences in law emanating from it against the parties to it with the Plaintiff. Because it stems from the provisions of the Forestry Act 1991. The certificate issued under Part IV of its activities a schedule of which including the certificate is annexure “A” to the affidavit of one Siih Hoe Lu sworn 18th November 2019. The Schedule covers Harvesting of Forest Products, Processing of Forest Products, Sale of Forest Products and Purchase of Forest Products and is signed by one Terry Warra Acting managing director PNG Forest Authority. 

9.	Annexure “B” of that same affidavit is the Timber Permit No. PNGFA- TP10-02 issued pursuant to section 73 Regulation and s118 of the Forestry Act 1991. And the Forest Development Project Agreement relating to the subject matter of this proceeding is Annexure “C”. There is in all respect, compliance with the Forestry Act and so the plaintiff’s rights in law are affected when a decision is made in respect and as here a plea to dismiss it for incompetency. But closer examinations of the facts flowing from these basic facts are the requirement under section 90A. A LARGE SCALE CONVERSION OF FOREST TO AGRICULTURAL OR OTHER LAND USE. The third defendant must demonstrate that he has been accorded the end result of an application made. Reliance on the affidavit of Clement Siri ILG Chairman customary land Owner of Sanemi Wefa Maku Land Group Incorporated must show that an application has been lodged in accordance with section 90A and material set out under Section 90A (3) (a) to (f) have been the basis upon which the excision was made of 6, 557.2 hectares of land out of the initial 137, 718 hectares accorded to the Plaintiff and the subject of the project agreement set out above with the Timber permit accompanying. 

10.	Because section 90A(2) specifically calls, “An application under Subsection (1) shall not be made where the proposed project is within a Forest Management Agreement Area, Timber Rights Purchase Agreement Area or Local Forest Area except with the approval of the Board and, where applicable, the holder of any relevant Timber Permit. 

11.	The plaintiff holds a Forest Management Agreement within that FCA area excised and therefore an application shall not be made without the approval of the Forestry Board and where applicable with the holder of any relevant timber permit. This means the plaintiff must approve the application of the third defendant. The reason is simple, he is holding Legal Rights by the Forest management Agreement over the subject land excised he must be heard before he is deprived off it. He makes money from that land as it is and therefore, he ought to be informed of what would become of it. He is informed and makes an independent approval of what is intended.  That is the reason why he contests that he did not approve because the documents annexure “H” letter from Board Chairman to Minister advising of Excision, annexure “I” the approval of Minister to excise,  “J” map, and “K” internal minute which he was not able to attain except as a result of discovery orders issued on Forestry Authority. The Plaintiff has not been privy to these documents even though he is directly affected in that land within the FMA now dissected in the excision.

12.	Leave was granted for Judicial Review on the 10th December 2019 by this Court presided by Justice Gavara-Nanu. Confirming materially that there is an arguable case demonstrated and the plaintiff is affected by the decision of the defendants. He has standing in pursuing this matter. In my view that holds against this application for dismissal because what is contended by the third defendant if weighed does not give due in his favour. His motion is not sustained and is dismissed with costs.

13.	The formal orders of the court are:

(1)	The motion of the 3rd defendant is dismissed as without merit and any jurisdictional basis forthwith.

(2)	Costs follow the event forthwith.
Orders Accordingly.
__________________________________________________________________
Jefferson Lawyers: Lawyer for the Plaintiff	
Office of the Solicitor General: Lawyer for State
B. Lai Lawyers: Lawyer for Third Defendant	
In house Lawyers-PNG Forestry Authority: Lawyer for First & Second Defendants