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Angale v Kimas [2021] PGNC 395; N9113 (7 September 2021)

N9113

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 1245 OF 2014

LENSIE ANGALE & ORS

Plaintiff

V

PEPI KIMAS as Secretary for Department of Lands & Physical Planning

First Defendant

AND

BENJAMIN SAMSPON as the REGISTRAR of the TITLES

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

AND

PALMA HACIENDA LTD
Fourth Defendant

AND

TUTUMANG DEVELOPMENT LTD

Fifth Defendant

AND

CENTRAL NEW HANOVER LTD

Sixth Defendant

Waigani: Tamade AJ

2021: 01^st September

PRACTICE AND PROCEDURE – application by plaintiff seeking to file amended writ of summons and amended statement of claim – plaintiff also seeks to join additional party as defendant - Whether the Writ of Summons is stale - no Affidavit material by the Plaintiff themselves supporting the amendments and supporting the submission for representing other landowners – writ of summons is stale - the application to add Joinland PNG Limited as it will be greatly prejudiced in being joined very late – application to amend is refused

Cases Cited:

Tepend Jack v MVIT (2008) N3342

Niap v Papua New Guinea Harbours Limited [2009] PGNC 39; N3672

Komboro George v MVIT [1993] PNGLR 477

Heinz v Foods Pacific Limited [1999] PGNC 55;N1867

Counsel

E Wohuinangu, for the Plaintiff

R Uware, for the State

P Tabuchi, Interested party to be joined

07^th September, 2021

1. TAMADE, AJ: This is an application by the Plaintiff pursuant to an Amended Notice of Motion filed on 08^th July 2021 seeking to file an Amended Writ of Summons and an Amended Statement of Claim, the Plaintiff also seeks to join an additional party as defendant being Joinland PNG Ltd amongst other orders.

2. Mr. Uware of the State basically consents to the Plaintiff’s application whilst Mr. Tabuchi who appears for Joinland PNG Ltd objects to this application.

3. Of interest is that all the Affidavit material filed in these proceedings is deposed to by Mrs. Wohuinangu of the Plaintiff. The content of these affidavits go to evidentiary matters the subject of these proceedings however they are deposed to by the lawyer in carriage of these matters. Evidentiary matters the subject of any proceedings should come from witnesses and or the authorized persons representing the Plaintiffs who are making these claims and who have first-hand knowledge of these matters. Mrs. Wohuinangu runs a risk of putting herself in the witness box if she is requested to be cross examined on these evidentiary matters. That is a matter for her however on the presentation of all these affidavits, the first impression is that the Plaintiffs themselves are quiet on their own case and I wonder whether Mrs. Wohuinangu has instructions from these Plaintiffs.

Background

4. These proceedings were filed in 2014 and about seven years later, Mrs. Wohuinangu representing the Plaintiff wants to amend the Writ of Summons and the Statement of Claim, join an additional Defendant, and effect service of the proceedings on the fifth, sixth and the additional party albeit after seven years of filing these proceedings.

5. Mrs. Wohuinangu’s affidavits seem to put her client’s case in the hands of the Defendants so to speak either to encourage them to attend Court in reference to the State, to give them opportunity to be heard, or unsure as to which party to add etc. as a result very good time had passed since filing the initial Writ and subsequently the initial Notice of Motion which was filed on 17^th March 2020. A year after the initial notice of motion was filed, the Plaintiff has filed an Amended Notice of Motion on 08^th July 2021.

6. From a perusal of the Court file, the Plaintiffs had filed a Notice of Motion on 07^th December 2012 seeking to withdraw proceedings however that never eventuated and the matter remained stagnant with attempts now to progress the matter.

7. The reasons advanced by Mrs. Wohuinangu in support of her application in her Affidavit filed on 26^th May 2020. Amongst the reasons for the delay in prosecuting the matter, Mrs. Wohuinangu states that her clients are very poor financially and live in a remote part of PNG with limited communication means and the short comings of her organization as a not-for-profit organization. I do not accept the reason as to the Plaintiff’s financial capacity. That is the reason why the Plaintiff’s sought the service of Mrs. Wohuinangu’s office, a not-for-profit organization who can represent them on some form of pro-bono fee arrangement.

8. In March of 2020, Mrs. Wohuinangu seems to say that they will take every step to progress the matter if the Court grants leave to amend their Writ of Summons and Amended Statement of Claim however more than a year later, they have filed another Amended Notice of Motion to amend the Writ and pleadings.

9. The proposed amendments are quite extensive as to the proposed Statement of Claim and it is an overhaul of the initial claim. The amendment seeks to empower the current Plaintiff’s the authority to represent a new set of landowners however again, these amendments are not supported by any affidavit material by the landowners or Plaintiff’s themselves but by Mrs. Wohuinangu. Does Mrs. Wohuinangu and CELCOR have full instructions from their clients to prosecute this matter? This is a question that comes to mind.

10. Mrs. Wohuinangu has not addressed the point whether the Defendant’s including the new party they seek to add will be prejudiced by the time period in regard to these proposed amendments. Time limitations in regard to the just disposal of matters are to ensure that litigants are not prejudiced and should come prepared in court either as claimants or defendants with regard to preservation of evidence etc.

Whether the Writ of Summons is stale

11. Mr. Tabuchi raised a fundamental point that pursuant to Order 4 Rule 13(1) in the National Court Rules, a Writ of Summons should be served within 2 years of its filing. Order 4 Rule 13 states that:

(1) For the purpose of service an originating process shall be valid for two years from the date on which it is filed.
(2) The Court shall not extend the period of two years mention in Sub rule (1)
(3) This Rule does not prevent the Plaintiff from commencing fresh proceedings by filing another originating process.

12. It is absurd that a stale writ of summons should be amended and served on a new party. A stale writ is a dead writ. I acknowledge Mr. Tabuchi’s submission on this issue and adopt the reasoning in the case of Tepend Jack v MVIT (2008) N3342.

Amendment of Pleadings

13. Amendments to the Writ and Statement of Claim seeks to refine at length the initial pleadings, a second attempt at presentation of the matter. Amendments should be to clarify the issues before the Court. In Niap v Papua New Guinea Harbours Limited [2009] PGNC 39; N3672 (2009), the Court held that if the amendments sought are to introduce new causes of actions which are statute barred, then they should not be allowed.

14. The submissions filed by the Plaintiffs on 29^th June 2020 at page 8 states that the causes of actions pleaded in the proposed Amended Statement of Claim can be categorized into ten categories. These causes of actions are statute barred as the matters complained of happened in 2010 and 2011. These proceedings were filed in 2014.

15. The case of Komboro George v MVIT [1993] PNGLR 477, the Court held that a Court would allow a pleading to be amended only if the other party will not be prejudiced. The amendments sought by the Plaintiff come very late in this matter and therefore the Defendants will be prejudiced. I will refuse the amendments sought by the Plaintiff on the Writ and the Statement of Claim.

16. In the case of Heinz v Foods Pacific Limited [1999] PGNC 55; N1867 (1999), the Court stated that:

“The Rules of Court have always allowed parties to amend their pleadings however this does not mean that pleadings can be amended at any time and whilst some amendments can be made without leave, once matters have progressed to a certain stage of proceedings then leave must be sought as otherwise the other party could be forced to chop and change just because the first party decides to amend and change. The right and procedure for leave to amend pleadings is both to ensure that the real matter in controversy between the parties is clarified and also it may relieve a party of the consequences of mistakes made by a legal adviser. “

17. The proposed amendments though very lengthy and are attempts to tidy up the claim, there is no Affidavit material by the Plaintiff themselves supporting the amendments and supporting the submission for representing other landowners.

Natural Justice

18. The Plaintiff submits in their written submissions that natural justice has been given to the logging companies to be heard in the matter and they have been duly served however they have not filed documents in defense of the matter. The Plaintiff states that the Defendants are not prejudiced.

19. The Plaintiff’s application of the principle of natural justice in this manner is perhaps misconceived. The Plaintiff can only do what they can to prosecute their claim within the ambit of the National Court Rules. If the Defendants are in default, it is upon the Plaintiff to file the required application and if the Plaintiff was slow in prosecuting the matter, it is upon the Defendants to apply for a dismissal of the proceedings. These have not been done. The principle of natural justice has been taken out of context by the Plaintiff.

Conclusion

20. I will refuse the application to add Joinland PNG Limited as it will be greatly prejudiced in being joined very late to these proceedings on a Writ that is now stale.

21. The claims against the First, Second and Third Defendants served on an active writ are very much alive and will remain however the claims against the Fourth, Fifth, and Sixth Defendants are dismissed as the claim has never been served on these Defendants and the Writ of Summons has gone stale. A writ can not be renewed in life so to speak by way of an amendment and served on these Defendants.

22. I will refuse the Plaintiff’s amended Notice of Motion in its entirety given my observations that there is no supporting affidavit by the Plaintiff’s themselves, the amendments sought are very late and would prejudice all Defendants.

23. I do not have to address the issue of the competency of the Amended Notice of Motion as I have allowed Mrs. Wohuinangu to move that application.

24. There is no need to transfer the matter to a different Court track.

25. The matter shall proceed in the initial form against the First, Second and Third Defendants and the Plaintiff’s shall take authorized steps with affidavit material from the lead Plaintiff’s as to material evidence that supports the claim. The Plaintiff’s stand at risk of the matter being dismissed for want of prosecution.

26. The matter shall return before me for Directions Hearing to progress the matter to trial.

27. The Plaintiffs shall meet the costs of this application to all named Defendants and also to Joinland PNG Limited.

28. The Orders of the Court are:

(1) The Plaintiff’s Amended Notice of Motion filed on 8 July 2021 is refused.

(2) The claim against the Fourth, Fifth and Sixth Defendant is dismissed as the Writ of Summons has never been served and has gone stale.

(3) CELCOR Lawyers shall meet the costs of the refusal on a party/party basis to the Fourth, Fifth and Sixth Defendants and to Joinland PNG Ltd.

(4) This matter shall return to Court for directions hearing on Tuesday 21 September 2021 to be progressed to trial.

(5) Time is abridged to the date of these orders to take effect forthwith.

Orders Accordingly.

________________________________________________________________

CELCOR Lawyers : Lawyer for the Plaintiffs

Office of the Solicitor General: Lawyer for First, Second and Third Defendants

Young & Williams : Lawyers for Joinland PNG Ltd