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Awari v Samson [2022] PGNC 82; N9483 (14 March 2022)

N9483

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 719 OF 2018

BETWEEN:
TIMON AWARI
Plaintiff

AND:
BENJAMIN SAMSON – Registrar of Titles
First Defendant

AND:
LUTHER SIPISON – Secretary for
Department of Lands & Physical Planning
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Dingake J
2022: 16^th February

PRACTICE AND PROCEDURE – notice of motion by defendant seeking orders for certiorari – objection to competency of application by defendants’ counsel for failing to plead correct jurisdictional basis when filing motion – plaintiff should file notice of motion under Order 16 rule 5(1) after grant of leave for judicial review – plaintiff failed to invoke the correct jurisdictional basis under Order 16 rule 5(1) and (2) NCR – defendants objection to competency of the application upheld – plaintiff’s application dismissed

Cases Cited:

Joshua Kalinoe v Paul Paraka; Hon Bire Kimisopa v Paul Paraka (2014) SC1366
Peter Makeng v Timbers (PNG) Limited (2008) N3317

Counsel:

Mr. Hebrew Babe, for the Plaintiff
Mr. Kevin Kipongi, for the Defendants

RULING

14^th March, 2022

1. DINGAKE J. By way of the substantive Notice of Motion filed with this Court on the 12^th of October, 2018, the Plaintiff moved this Court for wide ranging relief including an Order in the nature of certiorari to remove into this Court and quash the decisions of the First Defendant made on the 2^nd of July, 2018 and 3^rd of August, 2018 respectively in issuing a summons for the production of the Plaintiff’s owner’s copy of the Certificate of Title for the land and thereafter cancelling the Plaintiff’s title to the land pursuant to Order 16 Rule 1(1) and (2) of the National Court Rules (NCR).
   
2. The matter was set down for a hearing on the 16^th of February, 2022, and at the hearing of the matter Learned Counsel for the Defendants, Mr. Kipongi, objected to the competency of the application, arguing that the application is incompetent because the Plaintiff failed to plead the correct jurisdictional basis for this Court to entertain the matter.
   
3. It was Mr. Kipongi’s contention that the Plaintiff incorrectly invoked Order 16 Rule 1 and 2 of the NCR, instead of Order 16 Rule 5(1) that applies after the grant of leave for judicial review.
   
4. The Plaintiff simply brushed aside Mr. Kipongi’s contention as misconceived.
   
5. Order 16 Rule 1 and 2 provides as follows:
   

“1. Cases appropriate for application for judicial review. (UK. 53/1)

(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.

(2) An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to —

6. It is plain from the Order cited above that Order 16 Rule (1) and (2) provides merely for cases appropriate for judicial review.
   
7. Order 16 Rule 5 (1) provides as follows:
   

“5. Mode of applying for judicial review. (UK. 53/5)

(1) Subject to Sub-rule (2), when leave has been granted to make an application for judicial review, the application shall be made by Notice of Motion to the Court ...”

8. The issue of which Order/Rule should be pleaded by a party seeking substantive judicial review appears settled in this jurisdiction.
   
9. A preponderance of authorities seem to suggest that a party seeking judicial review after being granted leave should plead Order 16 Rule 5 (1) as contended by Mr. Kipongi, not Order 16 Rule 1 and 2 as the Plaintiff did.
   
10. The Supreme Court has held in the case of Joshua Kalinoe v Paul Paraka; Hon Bire Kimisopa v Paul Paraka (2014) SC1366, that if leave for judicial review is granted a Notice of Motion seeking judicial review must then be filed and served in accordance with the provisions of Order 16 Rule 5 (2).
    
11. In the case of Peter Makeng v Timbers (PNG) Limited & Others (2008) N3317, Injia, DCJ, as he then was, at paragraph 41 of his judgment stated, in the relation to the procedure to be followed after the grant of leave, that:
    

“Upon grant of leave, a Notice of Motion seeking substantive relief under Order 16 Rule 5 (1) should be filed and served.”

(emphasis mine).

12. Having regard to the above authorities, I am persuaded that these proceedings are liable to be dismissed on the basis of incompetency in that the Plaintiff has not pleaded the proper jurisdictional basis, which is Order 16 Rule 5(1).
    
13. It is trite law that costs generally follow the event. There is no reason why this should not be so in this case.
    
14. In the result:
    
    • (a) This proceedings are incompetent and are liable to be dismissed, as I hereby do, for failure to plead the correct jurisdictional basis.
      
    • (b) Costs are awarded in favour of the Defendants. Such costs to be agreed and if not agreed to be taxed.

_______________________________________________________________

Hebrew Babe Lawyers: Lawyers for the Appellant
Office of the Solicitor General: Lawyers for the Respondents