N8609
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 264 OF 2019

BETWEEN:
AMANAB FOREST PRODUCTS LIMITED
Plaintiff

AND:
PAUL SAI’I, GUNTHER JOKU, NOAH TAMBI, THERESE KAMU, JOSEPHINE GENIA, BOB TATE & JACOB AREMAN as members of the National Forest Board.
First Defendant

AND:
PAPUA NEW GUINEA FOREST AUTHORITY
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
PACIFIC GREEN FOREST LTD
Fourth Defendant

AND:
MINEP LIMITED
Fifth Defendant

AND:
MIDOWA LIMITED on its own and on behalf of named 43 incorporated land groups of Walsa FCA
Sixth Defendant

Waigani: Miviri J
2020: 15th October

PRACTICE & PROCEDURE – Judicial Review & appeals – Application for Dismissal of proceedings – Section 155 (4) Constitution – National Court Rules Order 16 Rules 13 (13) (2) – balance discharged – leave granted– cost follow event.

Cases Cited:
Takori v Yagari [2008] PGSC 3; SC905 
National Housing Corporation v Asakusa [2012] PGSC 6; SC1165 
Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 
Melanesian Trust Services Ltd v Pacific Equities and Investments Ltd [2010] PGNC 272; N8362 
Andakelka Ltd v Petronas Ltd [2010] PGNC 4; N3976
Counsel:

J. Kare, for Plaintiff
S. Mitige, for First & Second Defendants
M. Pints, for Fourth Defendant
R. Uware, for Third Defendant
T. Tape, for Sixth Defendant
					RULING 
 23rd October, 2020
1.	MIVIRI, J: This is the Ruling on the sixth defendants notice of motion of the 12th December 2019 to dismiss the entire proceedings pursuant to Order 16 Rule 13(13) (2) of the National Court Rules, “the Rules” and Section 155 (4) of the Constitution for incompetency and or for being frivolous and vexatious because events since have overtaken to a stage where the continuation of the Judicial review proceedings will serve no utility. 

2.	Preliminary part of the motion was heard before this court presided by Justice Thompson on the 19th December 2019 where orders were made granting leave to the 6th defendant to join the proceedings. Further he was to pay the costs of the plaintiff on a party-party basis to be agreed if not to be taxed. This is the remaining part of that motion for an application to dismiss the proceedings for incompetency. Which is on the basis that the initial causes necessitating the originating summons has now being answered remedy offered by the turn of events that have since come about. The initial originating summons seeks judicial review of the First defendant’s decision which comprise the turn of events that now entail that there is no cause of action since the underlying basis of instituting have now of their own volition solved the equation brought and sought before the court. These are as follows:

(i)	Excise or remove 17,000 hectares of land forming part of the Amanab blocks 1-4 and Imonda Consolidated Forest Management area, Sandaun Province.

(ii)	Accept the application for the fourth defendant for a Forest Clearing Authority (FCA) over the 17000 hectares excised or removed from the Amanab blocks1-4 and Imonda Consolidated Forest Management Area, Sandaun Province

(iii)	Grant a Forest Clearing Authority No. FCA 10-05 dated the 28th September 2015 to the Fourth Defendant for the Walsa Integrated Agriculture Project Area.

3.	The jurisdictional basis relied is Order 13 (13) (2) of the Rules upon which gives authority for the summary disposal of any judicial review proceedings on any other competency grounds. It is the contention of the sixth defendant that the events prayed for relief now answered of are pertinent or underlying this cause of action instituted here the Forest Clearing Authority number FCA No. 10-05 dated the 28th September 2015 the subject of this judicial review proceeding has been cancelled by the Papua New Guinea Forest Authority on the 27th March 2020.

4.	That the overlap of the land issue of 17000 hectares has been determined by the Local Land Court on the 14th October 2014. Further there is a separate Court proceeding styled OS No. 61 of 2020- Alfred Wand & another v Amanab Forest Products Limited filed by the Landowners which is seeking to confirm the Local Land Court orders of the 14th October 2014 to the effect that the issues on the alleged overlap of 17000 hectares has already been determined by the Local Land Court. And that substantially the Forest Clearing Authority No. FCA 10-05 was initially granted by the Papua New Guinea Forest Authority on the 14th May 2012 whilst the Forest Management Authority permit was granted on the 17th May 2012 and thus the FCA was granted first in time. Hence the application of the maxim, qui prior est tempore potior est jure: he who is earlier in time is stronger in law. Simply he who is first in time is first in right or one who is prior in time has a superior right in law.

5.	Here the subject notice of motion relies on the following affidavits of Bonny Enda and Alfred Wand both sworn the 12th December 2019 and filed on the same date, Timil L. Tape sworn 23rd September 2020 filed on the same date, Affidavits of Nichodemus Masai, Gideon Laho, Gordon Meho, Martin Sylvester, Paul Augustine, and Herman Vua, all sworn and filed on the 13th December 2019, and Bonny Enda sworn 23rd June 2020 and filed the 8th of July 2020.

6.	Predominantly and materially these evidences establish that after due process of mediation involving all parties to the dispute, a mediated outcome was reached on the 14th October 2014. Which was endorsed and issued as orders of the Local Land Court sealing the boundary issue to rest. There is no dispute as to the common boundary between the Minep ILG and Imonda FMA Extension project emanating from the lands Department report disseminated by letter dated the 26th August 2014. The 34, 000 hectares of land area for the Walsa FCA was intact. Effectively it means there is no utility in the judicial review proceedings the fundamental of that dispute is now addressed and laid to rest. It serves no purpose to hold these proceedings on the records of this court. Justice is not denied if the motion is granted.

7.	It is clear from the evidences set out and relied above that the plaintiff caused the overlap of the boundaries with the PNG Forestry officers when they were using the aerial survey without consulting the landowners on the ground. Because when the extension of Imonda FMA was made none of the villages of Epmi, Netwond, and Sainindi with Daundi who are within the overlap were consulted. That has been the subject of a local land court action now resolved. Therefore, for all intent and purposes there is no dispute as to the boundary the subject of the judicial review proceedings current initiated by the Plaintiff. 

8.	Because the mediation is unquestionable and is now an order of the Local Land Court which has not been set aside in any way or varied. Because from the evidence that has been placed record was made under form 7 of the Land Dispute Settlement Act filled in by the two Mediators appointed of Willie Saranduo of Vanimo Green District and Daniel Waranduo of West Sepik Provincial Administration. Both also attached Schedule 1 registered survey plan of Portion 44C for the FCA, Schedule 2 Map verifying Imonda FMA Extension Project and Walsa FCA Project and Schedule 3 meeting minutes of the mediation held on the 26th September 2014. Including a letter dated the 26th August 2014 from one Daniel Waranduo, Director, Division of Lands & Physical Planning, Sandaun Provincial Administration addressed to Midowa Limited with the following documents attached boundary verification report dated the 28th August 2014 and map of the boundary of the FCA and FMA. The affidavit of one Alfred Wand sets this with all supporting documents attached as annexures from “A” to “H”. With all the other evidence affidavit relied set out above the boundary has been settled there is no issue to be tried in the judicial review proceedings open and current from this evidence.

9.	In so considering I am mindful of the cause that the plaintiff takes up here. Suffice to say that no party should be summarily derailed from the judgment seat without proper consideration due because the courts will be slow to so grant: Takori v Yagari [2008] PGSC 3; SC905 (29 February 2008). But is there reasonable cause evident identifiable and apparent against the pray that the sixth defendant makes here so as to retain the proceedings? From all the material set out above there is nothing in this regard to sway against the application that is made. In my view the sixth defendant has discharged the balance because the plaintiff has not provided that there is continued need for the maintenance of the proceedings. I am also mindful of the fact that what is sought sets to rest the issues identifiable and apparent to the cause of action instituted because the issue must be the same and is now finally determined bringing into play the doctrine of issue estoppel: National Housing Corporation v Asakusa [2012] PGSC 6; SC1165 (1 March 2012). Simply put the matter has now come to the end of its natural life and will not be revived any more because there really is no basis to revive the fundamental holding has been laid to rest. That in my view is the strength of the evidence in the material relied and therefore motion is substantiated. Because the issues for all intent and purposes are now res judicata: Telikom PNG Ltd v Independent Consumer & Competition Commission [2008] PGSC 5; SC906 (28 March 2008).That is what is by the material that has been relied in support of the motion.
 
10.	And this is not the first time ever that the court has determined a matter because the issues raised have been determined in this way by the turn naturally of events that have since unfolded since the institution of the proceedings, examples pointed out by the sixth respondent are Melanesian Trust Services Ltd v Pacific Equities and Investments Ltd [2010] PGNC 272; N8362 (4 May 2010) and Andakelka Ltd v Petronas Ltd [2010] PGNC 4; N3976 (8 March 2010). I have in all fairness read both and am satisfied of their application here given the facts here that this is by the turn of events naturally that now rest the matter from any further litigation on the issues open and pending. 

11.	In all totality, I am fortified to uphold the motion sought and accordingly grant it as pleaded. The formally orders of the court are:

(1)	The application of the 6th defendant is upheld.

(2)	The proceedings are dismissed in its entirety pursuant to Order 16 Rule 13 (13) (2) of the Rules.

(3)	Costs follow the event forthwith.
Orders Accordingly.
_________________________________________________________________
Bradshaw Lawyers: Lawyer for the Plaintiff Applicant	
In house Lawyers: Lawyer for First & Second Defendants
Office of the Solicitor General: Lawyer for Third Defendant	
Leahy Lewin Lowing Sullivan Lawyers: Lawyer for Fourth Defendants
Kandawalyn Lawyers: Lawyers for Sixth Defendants