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Ola v Kana [2020] PGNC 411; N8673 (2 December 2020)

N8673

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 626 OF 2018

BETWEEN:
BOB BOIO OLA
Plaintiff

AND:
GIMA KANA
First Defendant

AND:
THOMAS VOGUSANG, Presiding as the Central Provincial Land Court Senior Magistrate
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2020: 14^th October, 2^nd December

PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of motion –Order 16 Rule 5 NCR – Whether Judicial review lies – locus Standi – Standing class action whether plaintiff has – Review of Provincial Land Court – Grant of Leave for specific decisions pleaded – District Land Court decision 1995 not included – Repeated Litigation - whether res judicata – Abuse of process – Whether action time barred – Section 53, 54 Land Dispute Settlement Act – Material Relied insufficient – Balance not discharged – Judicial Review denied – cost follow event.

Cases Cited:

Mali v Independent State of Papua New Guinea [2002] PGSC 4; SC690

Malewo v Faulkner [2007] PGNC 150; N3357

NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797

Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906
Counsel:

Iliga Ola in Person
R. Lenalia, for First Defendant
N. Yano, for Second & Third Defendants

RULING

02^nd December, 2020

1. MIVIRI, J: This is the ruling on the Plaintiff/applicant’s Substantive Notice of Motion filed 17^th September 2019 for Judicial Review pursuant to Order 16 Rule 5 of the National Court Rules. He was granted leave by this court on the 03^rd September 2019 to proceed by way of judicial review against the decision of the Central Provincial Land Court Senior Magistrate Thomas Vogusang made on the 26^th April 2018.
   
2. He was further granted leave to carry on the proceedings instituted by his brother named now deceased bearing as the original plaintiff named. He filed no further material in accordance with the Rules of Court to signify materially, he was pursuing the action with authority of other relatives relating to the land before the court. He produced no schedule attached to the proceedings styled as to name that he was appearing by authority of the other land owners “Manea manea” as lead plaintiff and applicant. Practically the other plaintiffs had no affidavits before the Court deposing that their authority was given to the plaintiff to appear for and on their behalf in the case of manea manea land. This was important because should the court determine and award damages or costs that flow it would be borne out by the group. Because land is not owned by a single individual here. And in this regard it would be consistent with Mali v Independent State of Papua New Guinea [2002] PGSC 4; SC690 (3 April 2002) setting the law adopted by the National Court in many instances to mind Malewo v Faulkner [2007] PGNC 150; N3357 (20 November 2007).
   
3. The plaintiff/applicant has not discharged therefore is not properly before the court as to locus Standi. He does not have the authority and cannot be seen in law to pursue an interest that is communal as is the cause of this action which is a dispute relating to land “Manea Manea” Land in Hula District Central Province.
   
4. This is the submission of the second and third defendants. It has merit in the law which is summed by the Supreme Court in this way;-“Contrary to what learned counsel for the appellants asserts, the legal representatives of the unnamed plaintiffs in all of the five (5) proceedings were required by law to "have their names included in a schedule (to the writs) or for their written consents to be filed". And these written consents would have had to come by way of an Authority to Act Form. The NCR under O. 5 makes the following pertinent rules:

3. Joint right.

(1) Where, in any proceedings, the plaintiff claims relief to which any other person is entitled jointly with him –

(a) all persons so entitled shall be parties to the action; and

(b) any of them who do not consent to being joined as a plaintiff shall be made a defendant.

(2) Sub-rule (1) applies subject to any Act and applies unless the Court gives leave to the contrary.

8. Addition of parties.

(1) . . .

(2) A person shall not be added as plaintiff without his consent. (Underlining ours).

(3) . . .

We accept the State’s submission that in all actions or proceedings of a representative nature, all the intended plaintiffs must be named and duly identified in the originating process, be it Writ of Summons, Originating Summons or Statement of Claim endorsed on a writ. In this respect, pursuant to the Rules (supra), each and every intending plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them. There are good reasons for this, one being where costs of the litigation are concerned, if awarded against the plaintiffs. Some of the problems or consequences in a representative action are anticipated in the various sub-rules under O. 5, r. 13 NCR (Representation: Current interests).

5. Here is a cause of action without evidence to that effect. For all intent and purposes clearly by the Rules of Court followed in these authorities the plaintiff has not come into this proceeding by the law. He is not before the law and cannot invoke the jurisdiction of the court as motioned. On this fact alone his motion stands dismissed. Judicial review is a very restricted process and is not open to the world and standing is material and underlying to the cause of action: NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70 . By this the plaintiff does not have any standing to bring the cause of action it is not seen in law and he is not before the court. Accordingly, the action is dismissed on that basis.
   
6. Even if it were pleaded that this was not enough for dismissal the substantive notice of motion pursuant to Order 16 rule 5 barely makes out what is sought here. The originating summons accompanied by the Statement was for the purposes of leave which has been attained: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). It cannot constitute the material for the substantive cause. Because the notice of motion governs the initiation therefore it must so set out: Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005. There are no proper pleadings upon which what is sought can be derived at for the plaintiff here. Included also that leave was granted 14^th October 2019 specifically for the decision of the 26^th April 2018 by the second defendant presiding as the Senior Magistrate Central Provincial Land Court. It excludes any other material sought to be relied on here.
   
7. Except for annexure “G” of the affidavit of Bob Boio Ola sworn 12^th September 2019 filed the 18^th September 2019. This basically refuses the application for extension. And that the order dated the 02^nd February 2006 is declaring previous orders made 16^th January 1995 as null and void and to be reviewed. Parties are granted liberty to review not institute fresh proceedings in the matter. And the appeal is struck out and the fee of K500 is refunded. It is ordered and entered 26^th April 2018. There is no impropriety on the face of this record. And no procedural irregularities are demonstrated to vitiate the decision made. There really is no basis to bring it as is sought now because the materials relied do not support. What is sought is affidavit material that leave was not obtained for in this proceeding. They do not relate and cannot be considered here.
   
8. The notice of motion is very restricted in the way it is drafted and reading it does not legally or grammatically pave way for the plaintiff’s cause of action. Because what is asserted does not meet the test in Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 (28 March 2008) of the concept of res Judicata. It has been determined by a court of competent jurisdiction on its own merits. And the same issue is pursued and repeated here, because the plaintiff has come now after the decision of a court of competent jurisdiction. That amounts to abuse of the process and the court will protect its process from the same. A competent court of Jurisdiction has made a determination which must be protected. Justice of the case does not warrant given all set out above of defying Order 16 rule 13 (13) (2) (a) (b) of the National Court Rules. Rather heed must be paid and the ultimatum is that this proceeding is dismissed in its entirety pursuant.
   
9. It must be set in perspective that section 53 of the Land Disputes Settlement Act gives the jurisdiction to the court at first instance as it was established for that purpose and the dispute fell within its immediate area. But then reading section 54 of that Act a person aggrieved may appeal within three (3) months after the date of the decision of that court. Here the decision by the Magistrate was on the 26^th April 2018 this is not an appeal but judicial review. These facts do not advance the case of the plaintiff any further than dismissal. Because the decision subject of the review has not been placed here. It will comprise the reference point for the plaintiff from which he can show if there were procedural as well as substantive errors in the procedure followed so as to vitiate that decision on the basis that it was ultra vires. Ultimately showing apparent and identifiable error of law and fact to vitiate the decision at first instance. And attaining review in his favour. As it is that cannot be done. It is his cause the balance is short and has not attained probabilities and so will be dismissed in its entirety with costs.
   
10. The formal orders of the court are:
    
    • (1) Judicial review is not made out.
      
    • (2) There is no cause of action to the balance.
      
    • (3) The proceeding is dismissed in its entirety as an abuse of process.
      
    • (4) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

The plaintiff/Applicant In person: Lawyer for the Plaintiff/Applicant

Office of the Public Solicitor: Lawyer for First Defendant

Office of the Solicitor General: Lawyer for Second & Third Defendant