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Manel v AJ Timber Development Ltd [2021] PGNC 441; N9206 (23 August 2021)

N9206

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 163 OF 2019

BETWEEN:
JOHN MANEL AS CHAIRMAN OF ANDRU ARAMAI TIMBER INVESTMENT LIMITED
First Plaintiff

AND:
ANDRU ARAMAI TIMBER INVESTMENT LIMITED
Second Plaintiff

AND:
AJ TIMBER DEVELOPMENT LIMITED
First Defendant

AND:
GOODWILL AMOS IN HIS CAPACITY AS THE ACTING MANAGING DIRECTOR FOR THE PAPUA NEW GUINEA FOREST AUTHORITY
Second Defendant

AND:
PAUL SAI’I CHAIRMAN OF THE BOARD OF DIRECTORS OF THE PAPUA NEW GUINEA FOREST AUTHORITY
Third Defendant

AND:
PAPUA NEW GUINEA FOREST AUTHORITY
Fourth Defendant

Waigani: Miviri J
2021: 18^th & 23^rd August

PRACTICE & PROCEDURE – Judicial Review & appeals – Amended Notice of Motion – Addition of Party to Proceedings – Jurisdiction to Amend Statement & Amended Motion – No allowance Amendment Substantive Notice of Motion – Order 16 Rule 3 (4) Amendments to Statement – Order 4 Rule 49 (8) NCR – No Utility subject of Decision expired – Whether Amendments Determine Real Issues – Subject of Decision expired – Leave to amend refused – cost follow the event.

Cases cited:

National Superannuation Fund Ltd v Yawenaik Holding Ltd [2017] PGNC 200; N6865

Double Field (PNG) Ltd v Mirisim [2020] PGNC 397; N8643

Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
Counsel:

C. Apundamatiet, for Plaintiff
E. Heagi, for First Defendant

RULING

23^rd August, 2021

1. MIVIRI, J: This is the ruling on the Plaintiff’s leave application to amend their amended statement filed on the 23^rd April 2019. He pursues by an amended notice of motion of the 18^th August 2021.
   
2. That pursuant to Order 16 Rule 6 (2) the plaintiff be granted leave to amend his statement in the form annexed to the affidavit of Casper Apundamatiet sworn of the 09^th August 2021 filed of the 10^th August 2021.
   
3. Relevantly the amendment seeks insertion that, “Hon Douglas Tomuriesu, Minister for Forests on 26^th January 2018 by virtue of section 137 (1) of the Forestry Act 1991 (as amended) granted an extension of three (3) years to the term of the Timber Permit TP No. 14-10 held by the First Defendant, AJ Timber Development Limited. The extension of that Timber Permit will expire on 25^th January 2021.”
   
4. It means the decision which extended the timber permit for three years now since has the subject timber permit expired as of the 25^th January 2021. This is 18^th August 2021. There is no timber permit in place by operation of law. It must go back before the drawing board in law for interested parties to apply in accordance. This includes the plaintiff.
   
5. The amendment will not address any real issues before the Court. It will not reissue the permit now expired for all intent and purposes. The cause of action has died a natural death. The amendment will not address the real issue still pending awaiting determination. There is no utility to pursue the application it will not serve any purpose or utility because what can declarations attain to lift the wings of the cause of action under section 155 (4) of the Constitution. This is not a situation where the appeal period has lapsed at no fault of the Prisoner Avia Aihi, so that if resort is to be held primarily to that fact, injustice would be caused to her. Her sentence would be disproportionate to the gravity of the crime. It is therefore fitting that section 155 (4) of the Constitution be granted on the basis to hear her appeal on sentence out of the forty days appeal period.
   
6. That isn’t the case here. The timber Permit that was granted by the decision of the Minister has died a natural death. It is no longer there against the Plaintiff in the hands of the defendants. All have to come anew and seek fresh applications to qualify to be granted. There will not be anything attained to declare that the three years of the permit was in breach of the law. It is not there anymore. That is what the plaintiff seeks it has by operation of the natural life of the permit ended. The plaintiff has been served. It would not be of any mileage to seek a report of the Provincial Forestry Board on the same nor the way the application was lodged for the permit that was granted now expired of the 25^th January 2021.
   
7. Because the Court has jurisdiction to amend if the issues are still open pending determination: National Superannuation Fund Ltd v Yawenaik Holding Ltd [2017] PGNC 200; N6865 (12 September 2017). But here the relevancy of the issue to the cause of action cannot be attained because what has been sought out has naturally died. It does not assist the plaintiff in the cause of action, what in essence will be declared as a result of the amendment granted. There is nothing to be declared in law and this is clear: Double Field (PNG) Ltd v Mirisim [2020] PGNC 397; N8643 (11 November 2020) it will assist the plaintiff determine anything because there is nothing to be determined before the court should the amendments be allowed.
   
8. The decision of the subject of the review of the second third and fourth defendants made 26^th January 2018 to grant an extension of TP 14-10 for three years expiring 25^th January 2021 has come to rest. Leave will not address the real questions; the facts do not warrant grant of leave. The motion is without any utility and is refused with costs. Judicial review is time driven Order 16 Rule 4 this matter should have come immediately after within. It has not it has been amended reamended, blame cannot be attained to the Pandemic or anyone except, He who seeks to challenge in the first place, the plaintiff.
   
9. The plaintiff must know what his cause of action is, what is the real questions arising that he seeks the hand of equity. He cannot come and insert and amend as he sees arise in the course leading up. The grant of leave is based on the original originating document and does not extend to any new ground added later in time. The pleadings would not be proper in accordance and by Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008) there is no cause of action open to the applicant in the way he seeks. Because there is simply nothing to be determined on the basis of allowance of the amendments proposed, leave is therefore refused to amend as applied with costs.
   

(i) The amended Notice of Motion for leave to amend is refused.

(ii) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Ama Wali Lawyers: Lawyer for the Plaintiff/Applicant

Ashurst PNG: Lawyer for the Defendant