N9838
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE

OS NO. 387 OF 2021

BETWEEN:
ARISO ZUTEFA & 6 OTHERS Listed in Schedule 1
Plaintiffs

AND:
HON. PETER NUMU as Governor and Chairman of the Eastern Highlands Provincial Executive Council
First Defendant

AND:
EASTERN HIGHLANDS PROVINCIAL EXECUTIVE COUNCIL
Second Defendant

AND:
JOHN GIMISEVE as the Provincial Administrator of the Eastern Highlands Provincial Administration
Third Defendant

AND:
EASTERN HIGHLANDS PROVINCIAL GOVERNMENT
Fourth Defendant

Goroka: Mugugia, AJ  
2022: 17th, 22nd August

PRACTICE AND PROCEDURE – Plaintiffs’ application seeking leave to amend their Originating Summons – National Court Rules, Order 8, Rule 50(1) – Whether the Plaintiffs’ application for leave to amend their Originating Summons should be granted -   Power of the Court to grant leave is discretionary – Consideration of the guiding principles on the question of leave to amend a pleading.

Case Cited:

Kewa v. Kombo (2004) N2688.
Papua Club Inc. v. Nusaum Holdings Ltd. (2002) N2273.

Counsels:

V. Yobone, for the Plaintiffs  
N. Onom, for the Defendants  

RULING

22nd August, 2022 	

1.    MUGUGIA, AJ: The Plaintiffs are aggrieved long serving senior officers within the Eastern Highlands Provincial Government. A Provincial Executive Council Decision approved and endorsed the payment of their costs and damages associated with defending an earlier Court proceeding against them which was dismissed. A sum of K200,000.00 was settled in 2017. No further action to address settlement of the balance of what was approved to be settled forced them to institute the current proceedings against the Defendants. 

2.  The Plaintiffs commenced their action by originating summons on 20th December 2021. When the matter was mentioned in Court on 9th May 2022, the Court noted the relief sought in the Originating Summons filed on 20th December 2021, and raised an issue concerning the mode of proceedings. Order 16 of the National Court Rules was cited, and an order in the nature of mandamus was sought by the Plaintiffs. The specific relief sought were:

“1. A declaratory order pursuant to Order 16, Rule 1(2) of the National Court Rules and/or Order 4, Rule 1, 2(3) of the National Court Rules that the decisions of the Second Defendant numbered 07/14 of 7th February 2014, and 05/17 of 23rd February 2017, are for all intents, valid and wanting compliance by the Defendants. 

2. An injunction in the nature of a mandatory injunction pursuant to Order 16, Rule 1(2) of the National Court Rules, and/or Order 4, Rule 1, 2(3) of the National Court Rules for the Defendants to take active steps to complete giving effect to the Eastern Highlands Provincial Executive Decision No. 07/14 dated 23rd February 2017. 
  
3. An alternative order in the nature of a mandamus order pursuant to Order 16, Rule 1(2)(a) of the National Court Rules, compelling the Defendants to pay the outstanding balance of K5.8million to the Plaintiffs to give effect to the Eastern Highlands Provincial Executive Decision No. 07/14 dated 23rd February 2017.

4. Costs of the proceedings to be taxed if not agreed to between parties.

5. Such other Orders deemed appropriate by the Court.” 

3.     The Plaintiffs’ lawyers who filed a notice of appearance on 10th March 2022, opted to file an application to amend the original Originating Summons to properly plead the relief instead of filing a judicial review proceeding. The Plaintiffs are now before this Court with their application seeking leave to amend the Originating Summons filed on 20th December 2021. On 17th August 2022, Ms. Yobone of Counsel for the Plaintiffs prosecuted her clients’ application (Notice of Motion filed on 21st June 2022). The supporting affidavit relied on by the Plaintiffs was the Affidavit in Support of Ariso Zutefa filed on 21st June 2022. In this affidavit, reference was made to Ariso Zutefa’s previous affidavit filed on 20th December 2021 which is document number two on the Court file. I heard the application and reserved my ruling to 22nd August 2022.

ISSUE  

4.    The issue that arises from the Plaintiffs’ Notice of Motion is: 

Whether the Plaintiffs’ application for leave to amend their Originating Summons should be granted. 

PLAINTIFFS’ SUBMISSIONS

5.   The source of the application is Order 8, Rule 50(1) of the National Court Rules. The Plaintiffs’ submissions through their Counsel are that the power to grant leave for amendment is discretionary, however discretion must be judicially exercised based on proper principles. Reliance was placed on the case of Lendepon Wal v. Oil Search (2017) N7051, and these submissions were made to the Court:

(1) The amendment will enable the Court to determine the real issue, being whether, there is a valid Provincial Executive Council Decision, and whether there was a payment of K200,000.00.

(2) The amendment will correct the defect in the proceedings as it will not confuse the parties, and the Court as to the mode of proceeding. 

(3) The amendment will not cause any prejudice to the Defendants.  

(4) The application is made bona fide.

(5) The application for amendment was done by direction of the Court, and there should be no issue as to costs. 

(6) The Plaintiffs are not prevented by their conduct or the manner in which the proceedings have been progressed from being permitted to amend their pleadings. 
(7) The interest of justice lies in the grant of the orders for amendment. 

(8) The proposed amendment is a proper amendment. 

6.   Additional submissions for the Plaintiffs on the mode of proceeding were that the Plaintiffs in the present case sit between choosing judicial review under Order 16 of the National Court Rules, and the mode of proceeding under Order 4. If only an injunction or declaration is sought, the Plaintiff has a choice. Order 4 or Order 16 can be used. 

7.    The Plaintiffs have opted to amend their Originating Summons. A copy of the proposed amended originating summons is annexed as Annexure “A” of the Affidavit in Support of Ariso Zutefa filed on 21st June 2022. The Plaintiffs make a claim for the following relief:

“1. A declaration that the decisions of the Eastern Highlands Provincial Executive Council being the Second Defendant being Decision No. 07/14 of 7th February 2014, and Decision No. 05/17 of 23rd February 2017, are for all purpose and intent, valid and wanting in full compliance by the Defendants. 

2. A declaration that the Defendants have paid to the Plaintiffs the sum of K200,000.00 as part payment contained in Eastern Highlands Provincial Government Cheque No. 134923 dated 20th October 2017, thereby giving effect to Item No. 2 of the Second Defendant’s Decision No. 05/17 dated 23rd February 2017.
 
3. An order in the nature of a mandatory injunction compelling the Defendants to take active steps to complete giving effect to the Eastern Highlands Provincial Executive Decision No. 05/17 dated 23rd February 2017.
4. Costs of the proceedings, to be taxed if not agreed.
5. Any other orders deemed appropriate by the Court.”

DEFENDANTS’ SUBMISSIONS 

8.    Mr Onom of Counsel for the Defendants did not seriously contest the Plaintiffs’ application but submitted that costs should be paid by the Plaintiffs because the defect was caused by them. He advanced the argument that the Plaintiffs were required to give a Section 5 notice to the State.   

REASONS FOR RULING

9.     Mr Onom raised the issue concerning the requirement to give Section 5 notice to the State. He argued that the Plaintiffs should have given a Section 5 notice to the State. Ms. Yobone contended that the State is not named. The Defendants should have filed a formal application, and what is before the Court is her clients’ application.                             

10.   The issue raised by Mr Onom is a preliminary issue about whether the proceedings are properly before the Court. The Defendants had no formal application before me. The question of service of a Section 5 notice to the State pursuant to Section 5 of the Claims By and Against the State Act was not the issue before me to determine. The Plaintiffs’ application was before me, and the issue was whether the Plaintiffs’ application for leave to amend the Originating Summons should be granted. I find that there was no basis for Mr Onom to raise this argument. 
  
11.   I will now deal with the merits of the application before me. 

Law on Amendment of Pleadings  

12.   The National Court has power under Order 8, Rule 50 of the National Court Rules to grant leave to amend any document at any stage of the proceedings. Sub-rule (1) of Order 8, Rule 50 provides that at any stage of the proceedings, the Court may grant leave to a party to make an amendment to any document in the proceedings either on application of a party or of its own motion in such manner as the Court thinks fit.

13.   The power to grant leave is an exercise of judicial discretion and must be exercised based on proper principles of law.  
14.    In Papua Club Inc. v. Nusaum Holdings Ltd. (2002) N2273, Gavara-nanu J stated these guiding principles that the Court should consider when faced with an application for leave to amend a pleading:  
“(1) Where the amendment is to enable the Court to determine the real question in controversy between the parties, or
(2) Where the amendment is to correct any defect or error in the proceedings, and
(3) That such amendment will not cause real prejudice or injustice to other party, and
(4) That the application for such amendment is not made mala fide, and
(5) That the other party can be fairly compensated with costs for such amendment.”

15.     Cannings J added three more considerations in the case of Kewa v. Kombo (2004) N2688. They are:

“(6) Is the party prevented by its conduct or the manner in which the proceedings have progressed from being permitted to amend its pleadings?

(7) Where do the interests of justice lie?

(8) Is the proposed amendment efficacious? That is, is it a proper amendment?”

16.    I apply the considerations to the case before me in this manner:  
(1) Will the amendment enable the Court to determine the real question in controversy between the parties? Yes. The amendment will enable the Court to determine the real issue in dispute between the parties, and do justice in the case. 

(2) Will the amendment correct any defect or error in the proceedings? Yes. The Plaintiffs had filed their original Originating Summons erroneously citing Order 16 of the National Court Rules and seeking a mandamus order. The proposed amended originating summons corrects that error. It sets out relief which can be sought in an ordinary originating summons under Order 4 of the National Court Rules.     

(3) Will the amendment cause real prejudice or injustice to the Defendant? No, the amendment will not result in injustice and prejudice to the Defendants.
(4) Is the application for such amendment made mala fide or bona fide? It is made bona fide. 
(5) Can the other party be fairly compensated with costs for such amendment? Yes. 
(6) Is the party applying prevented by its conduct or the manner in which the proceedings have been progressed from being permitted to amend its pleadings? No.  The Plaintiffs had filed the original originating summons without the benefit of legal representation. The Court had noted the relief sought, and raised an issue concerning the mode of proceedings. Now, with the assistance of lawyers, the Plaintiffs’ should be permitted to amend their pleadings.  

(7) Where do the interests of justice lie? The interests of justice lie in favour of granting the Plaintiffs’ application. 

(8) Is the proposed amendment efficacious? That is, is it a proper amendment? Yes, it is a proper amendment. 

CONCLUSION 

17.    In the exercise of my discretion, I will grant leave to the Plaintiffs to amend their Originating Summons filed on 20th December 2021. The Defendants will be compensated with costs for the amendment. I will order the Plaintiffs to pay costs. 

FORMAL ORDERS:

18.   The formal orders of the Court are: 

1. The Plaintiffs are granted leave to amend their Originating Summons filed on 20th December 2021.

2. Costs shall be paid by the Plaintiffs. 

3. Time for entry of these orders is abridged to the date and time of settlement of these 
orders by the Registrar which shall take place forthwith.

Ruling and Orders accordingly.
________________________________________________________________

V. Yobone: Lawyer for the Plaintiffs  
N. Onom: Lawyer for the Defendants