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Margu v Shaggymo Service Station Ltd [2021] PGNC 556; N9285 (23 September 2021)

N9285

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 561 OF 2021

BETWEEN:
GIDEON MARGU as Managing Director of Shaggymo Service Station Ltd.
First Plaintiff/Applicant

AND:
SHAGGYMO SERVICE STATION LTD.
Second Plaintiff/Applicant

AND:
PHILIP STAGG
Defendant

Goroka: Mugugia, AJ
2021: 22^nd, 23^rd September

PRACTICE AND PROCEDURE – dispensation of the requirement of service of the documents filed in the application on the Defendant – National Court Rules, Order 1, Rule 7 – notice of motion for interim restraining orders – National Court Rules, Order 12, Rule 1 and Constitution, Section 155(4).
PRACTICE AND PROCEDURE – Originating Summons filed – Whether Originating Summons in proper form - Summons not in the form prescribed by Order 4 Rule 25 and/or Order 4 Rule 26 of the National Court Rules – Summons stating appointment for hearing - Form 6 of the National Court Rules – Amendments would not be appropriate – Whole of these proceedings are set aside as being irregular.

Cases Cited:

Modilon General Hospital v. Liriope (2012) N4772
Petkol Trading Ltd. v. Community Development Services Ltd (2013) N5517
Mal-Con Ltd v Exxonmobil PNG Ltd (2020) N8489

Counsel:

Mr Nolan Amoiha, for the Plaintiffs/Applicants
No appearance for the Defendant

RULING

23^rd September, 2021

1. MUGUGIA, AJ: The matter returned before me as an urgent application for interim restraining orders on 22 September 2021. The Plaintiffs’ lawyer provided written submissions to assist the Court. Oral submissions were also made during the hearing. I heard the application and reserved my ruling to the next day, that is, 23 September 2021. This was to allow me to closely consider the materials before me, and the submissions presented to the Court.

This is my ruling.

BACKGROUND

2. The First Plaintiff is the Managing Director of the Second Plaintiff. He claims to be the sole owner of the Second Plaintiff. The Defendant is the First Plaintiff’s biological brother. The First Plaintiff alleges that the Defendant who is not the proprietor of a piece of undeveloped land described as Section 55, Allotment 10, Goroko, Eastern Highlands Province (subject land) was occupying it. He had a licence issued by the Department of Lands and Physical Planning to occupy which was subject to annual renewals. The licence covered Allotments 8, 9 and 10 of Section 55. The Plaintiffs claim that this licence is not in existence now. The Second Plaintiff entered into a Commercial Lease Agreement with a company called White Ranges Limited on 12 May 2021. It is in respect of Section 55, Allotment 10, Airport Road, Goroka. The Commercial Lease Agreement will end on 12 May 2022. Also, a Lease Agreement was entered into by the Defendant and a company called Diodan Consultancy Ltd on 8 August 2021. This agreement is in respect of Section 55, Allotments 8, 9 and 10. The term of the Lease Agreement is two (2) years. It commenced on 1 September 2021, and will end on 30 August 2022. The First Plaintiff alleges that there have been illegal interferences by the Defendant, and objections to the Second Plaintiff’s operations on the subject land.

3. In their Originating Summons filed on 14 September 2021, the Plaintiffs seek the following relief:

“1. Pursuant to Order 1 Rule 7 of the National Court Rules, the requirement of service of all the documents filed in this proceeding on the Defendant be dispensed with.

2. A declaration that Shaggymo Service Station Limited is solely owned by the First Plaintiff.

3. A declaration that the Defendant does not own or is not the landlord or the registered proprietor of land described as Section 55, Allotment 10, Goroka, Eastern Highlands Province.

4. A declaration that the Defendant’s actions in insisting on and receiving rental payments over the property described as Section 55, Allotment 10, Goroko, Eastern Highlands Province is deemed illegal.

5. A declaration that the property, assets and all of that structure described as the Shaggymo Service Station located on Section 55, Allotment 10, Goroko, Eastern Highlands Province is owned by the Second Plaintiff Company.

6. An interim restraining order restraining the Defendant, his agents and/or employees from interfering with and assuming authority over the business operations of the Second Plaintiff Company pending the determination of the substantive issues.

7. An interim restraining order restraining the Defendant, his agents and/or employees from assuming authority or holding themselves out as registered proprietors of the land described as Section 55, Allotment 10, Goroko, Eastern Highlands Province pending the determination of the substantive issues.

8. An interim restraining order restraining the Defendant, his agents and/or employees from collecting or insisting on collecting rental payments from the Second Plaintiff Company pending the determination of the substantive issues.

9. An order permanently restraining the Defendant, his agents and/or employees from interfering with and assuming authority over the business operations of the Second Plaintiff Company.

10. An order permanently restraining the Defendant from assuming authority or holding themselves out as registered proprietors of the land described as Section 55, Allotment 10, Goroko, Eastern Highlands Province pending the determination of the substantive issues.

11. Costs in the cause.

12. Such further orders as this Honourable Court deems fit.

MOTION

4. The Plaintiffs/Applicants moved on the notice of motion filed on 14 September 2021 seeking the following relief:

“1. Pursuant to Order 1 Rule 7 of the National Court Rules, the requirement of service of all the documents filed in this application on the Defendant be dispensed with.

2. Pursuant to Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution, an interim order restraining the Defendant, his agents and/or employees from interfering with and assuming authority over the business operations of the Second Plaintiff Company pending the determination of the substantive issues.

3. Pursuant to Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution, an interim order restraining the Defendant from assuming authority or holding himself out as the registered proprietor of the land described as Section 55, Allotment 10, Goroka, Eastern Highlands Province pending the determination of the substantive issues.

4. Pursuant to Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution, an interim order restraining the Defendant from collecting rental payments from the Second Plaintiff Company pending the determination of the substantive issues.

5. The Plaintiffs relied on the First Plaintiff’s Affidavit filed on 14 September 2021 in support of their motion for interim restraining orders.

6. Upon perusal of the materials before me, I noted from the Plaintiffs’ own evidence that the First Plaintiff is not the registered proprietor of the subject land (Section 55, Allotment 10, Goroko, Eastern Highlands Province). The PNG Land Information Systems Print Out from the Alienated Lands Division of the Department of Lands and Physical Planning showed that the subject land is registered as having ‘No Owners Recorded’, meaning that title is not registered under any individual, business, company, etc.

7. The alleged illegal interferences by the Defendant, and objections to the Second Plaintiff’s operations on the subject land, and a letter dated 18 August 2021 from McGregor & Associates Lawyers demanding the Plaintiffs to vacate Section 55 Lots 8, 9 and 10 have prompted the filing of the urgent application for interim restraining orders.

8. I also noted that the Plaintiffs’ Originating Summons filed on 14 September 2021 only stated the relief sought with the Plaintiffs’ lawyer signing off at the end. It did not state an appointment for hearing, and was not endorsed with the standard warning note to the defendant in relation to the filing of a notice of intention to defend.

ISSUES

9. The issues are as follows:

(i) Whether the originating summons is in the proper form; and

(ii) Whether the interim orders sought by the Plaintiffs in their motion
filed on 14 September 2021 should be granted.

CONSIDERATION

Whether the originating summons is in the proper form.

10. Order 4 Rules 25 and 26 of the National Court Rules read:

"Rule 25. Choice of summons.

A plaintiff commencing proceedings by originating summons may use either a summons stating an appointment for hearing in accordance with Rule 26 or a summons for a hearing to be appointed in accordance with Rule 27."

"Rule 26. Summons stating appointment for hearing.

(1) This Rule applies to proceedings commenced by originating summons in Form 6 stating an appointment for hearing.

(2) The appointment for hearing to be stated in a summons under this Rule may be fixed by the Court, or, if not fixed by the Court, shall be obtained form the Registry.

(3) Where there is a defendant, the summons shall, unless the Court otherwise orders, be served not less than five days before the date of the appointment for hearing.

(4) Where the appointment for hearing is obtained from the Registry and the summons is to be served outside Papua New Guinea, the date of the appointment shall be not less than one month after the date of filing of the summons.

(5) Where the Court makes an order under Sub-rule (3), the summons shall bear a note of the order made."

11. In Modilon General Hospital v. Liriope (2012) N4772, Davani J held that the Originating Summons filed by the Plaintiff is not in the form prescribed by Order 4 Rule 25 and 26 of the National Court Rules, and because the Originating Summons is not in the correct form, the proceedings are a nullity. Her Honour stated at paragraph 26 of her Decision, and I quote:

“26. The National Court can exercise its discretion to rectify these anomalies. Which means the plaintiff cannot ask for orders on an originating summons which is clearly defective and irregular. The Originating Summons must be corrected by an amendment or it can be dismissed.”

12. Her Honour further stated at paragraphs 30 and 31, and I quote:

“30. The law is that the Court must control the proceedings before it. It must do so because it has wide powers to control the conduct of proceedings before it.”

“31. The national Court has a wide discretion to screen and weed out claims and that the Court can exercise that discretion on its own initiative with or without application by an interested party (see Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085; Paul and Mary Bal v Kenny Taiya and Others (2003) N2481).”

13. In Petkol Trading Ltd. v. Community Development Services Ltd (2013) N5517, the Plaintiff and the Defendant both held State Leases over the same parcel of land. The Plaintiff commenced proceedings by originating summons which was not in proper form. Neither of the prescribed forms were used. The Defendant entered an appearance, and sought to dismiss the proceeding. Kariko J referred to the case of Modilon General Hospital v. Liriope (2012) N4772. His Honour held that the proceedings are defective and irregular, and set aside the whole of the proceedings for being irregular.

14. In the recent case of Mal-Con Ltd v Exxonmobil PNG Ltd (2020) N8489, Anis J stated at paragraph 16 of his Decision, and I quote:

“16. Division 4 of Order 4 in the National Court Rules sets out the processes required or applicable, in a case where a proceeding may be commenced by way of an originating summons.”

15. At paragraph 18, His Honour stated, and I quote:

“18. Form 6, in this case, has not been complied with by the plaintiff. The originating summons is therefore substantially defective, and as such, ought to be dismissed or struck out for want of form. See case: Modilon General Hospital Board of Management v. Dianne Liriope and Ors (2012) N4772.”

16. I adopt the statements made by the three learned judges, and take the same approach in the present case. An originating summons not in the form prescribed by Rules 25 and 26 of Order 4, and not endorsed with a warning to file a notice of intention to defend is a nullity.

17. The Originating Summons filed by the Plaintiffs in the present case is not in the correct form prescribed by either Order 4 Rule 25 or Rule 26 of the National Court Rules. It did not state an appointment for hearing, in accordance with Order 4 Rule 26 of the National Court Rules, and was not endorsed with the standard warning note to the defendant in relation to the filing of a notice of intention to defend. This questions the competency of the proceedings. I am of the view that amendments would not be appropriate. These proceedings must be set aside.

Whether the interim orders sought by the Plaintiffs in their motion filed on 14 September 2021 should be granted.

18. The proceedings as it is, is defective and irregular. Orders cannot be made on defective proceedings. To grant the orders based on a defective proceeding would be wrong in law. It is therefore not necessary for me to consider the Plaintiffs/Applicants’ arguments for interim restraining orders.

CONCLUSION

19. The proceedings are clearly defective and irregular. The Plaintiff is at liberty to file a fresh action.

FORMAL ORDERS:

20. I make the following orders:

1. The proceedings OS No. 561 of 2021, Gideon Margu and Shaggymo Service

Station Ltd. v. Philip Stagg are defective and irregular.

2. The whole of the proceedings are set aside as being irregular.

________________________________________________________________
Mr Nolan Amoiha: Lawyer for the Plaintiffs/Applicants