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Independent State of Papua New Guinea v National Land Commission [2023] PGNC 169; N10230 (15 March 2023)

N10230

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) No. 671, 673, 675, 676, 677, 707, 708, 709 & 711 of 2004


INDEPENDENT STATE OF PAPUA NEW GUINEA
Applicant


V
NATIONAL LAND COMMISSION
First Respondent


AND
NATHANIAS MARUM SITTING AS THE COMMISSIONER NATIONAL LANDS COMMISSION
Second Respondent


AND
DOUBLE U SQUARE CONSULTANT SERVICES LTD FOR AND ON BEHALF OF ANDREW ANN AND OTHERS OF MOGE KOMON-KA KOLGA CLAN OF LAND DESCRIBED AS PART MT HAGEN TOWNSHIP, UAL2, WESTERN HIGHLANDS PROVINCE
Third Respondent


AND
THADDEUS KAMBANEI SECRETARY FOR DEPARTMENT OF FINANCE
Fourth Respondent


Waigani: Miviri J
2023: 14th & 15th March


JUDICIAL REVIEW – PRACTICE & PROCEDURE – Notice of Motion – Order 1 Rule 7 & Order 16 Rule 13 (14) Dispensation of Service NCR – Order 4 Rule 49 (17) & Order 16 Rule 13 (13) (2) NCR & Section 155 (4) Constitution – Courts Power Control Its Proceedings – Dismissal For Want of Prosecution & Non Compliance Court Orders – Amendment to Consolidate Proceedings Order 8 Rule 50 (1) (2) Order 4 Rule 31 (1) (2) (3) NCR Section 155 (4) Constitution – No Prejudice to Other Party – Mala Fide as Opposed to Bona Fide Amendment – Other Party Can be Compensated with Costs – Is the Other Party Prevented by His Conduct – Interests of Justice – Materials Relied sufficient – Balance Discharged – Motion Granted – Costs follow event .


JUDICIAL REVIEW – PRACTICE & PROCEURE – Notice of Motion – Order 4 Rule 31 (1) (2) (3) NCR & Section 155 (4) of the Constitution – Leave to Withdraw Notice of Motion Earlier Filed – No prejudice to Other Side – Leave to Withdraw motion granted – Costs follow event.


Cases cited:


Takori v Yagari [2008] PGSC 3; SC905
Putupen v Sevua [2020] PGSC 34; SC1947
Kwimberi of Paulus M Dowa Lawyers v Independent State of Papua New Guinea [1998] PGSC 9; SC545
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126
National Development Bank Ltd v Noka Builders Ltd [2020] PGSC 44; SC1953


Counsel:


L. Kandi, for Applicant
No appearance for Respondents


RULING

15th March, 2023

  1. MIVIRI, J: This is the ruling on the Applicant’s Notice of Motion of the 29th June 2022 where he seeks:
  2. At the outset it is necessary to gauge if the subject proceedings has been served on the other parties to the cause of action by the State and its lawyers. Because today’s appearance by the applicant sees none of the Respondents appear either by Counsel or in person. And in this regard is the affidavit of one Joseph Mako para-legal in the employ of the firm MS Wagambie Lawyers, who deposes that on the 21st February 2022 at the office of the firm George Koare Lawyers at section 229 Allotment 62, Tokarara, Salote Street he did personally serve all relevant documents now used. The confirmation is annexure “ A” to his affidavit letter of the 21st February 2022 to the Registrar of the Court on the subject of the Taxation Review matters asking to have the matter listed for directions. It is copied to George Koare Lawyers at Portion 286 Granville, Hiri Street Koki, P. O. Box 71 Port Moresby. On the letter itself is acknowledgment form filled that it was received by Vali Kaore on the 22nd February 2022. And the time received is 11.19. It is duly signed by that person.
  3. Further the deponent para-legal on the 13th July 2022 attends at the office of George Koare Lawyers to serve the same document now sealed by the Court, namely the sealed notice of motion of the 13th July 2022 including the affidavit in support of Andrea Yauieb but finds that the lawyer George Koare has moved office. He tries the new location with the assistance of the Papua New Guinea Law Society to no avail. But is successful upon enquiries with fellow para-legals that the subject firm now has its office at a residential house in the same area at Tokarara but on a different street. He locates that residence on the 07th December 2022 about 1.50pm, parks his car and is about to go in when he sites the lawyer George Koare. Who is also trying to drive out when he serves the Court Documents the subject of this proceedings. In particular a letter dated the 17th November 2022; the notice of motion filed the 13th July 2022. The affidavit in support of the lawyer Andrea Yauieb dated the 22nd June 2022 filed of the 13th July 2022. And the letter dated the 05th December 2022. This is sealed by annexure “C” to his affidavit which deposes to this fact.
  4. In my view I am satisfied that the subject notice of motion and accompanying supporting affidavit has been duly served. In this regard the relief number one on the motion is satisfied. It settles leave granted counsel by court to dispense with the requirements of service initially. There is no reason either in law or fact to dispel not hearing the motion.
  5. This now brings me to address relief two where the applicant seeks in principle dismissal of the proceedings for want of prosecution and non-compliance of court orders of the court dated the 12th March 2020. Here it is important to stress that no party should be summarily derailed from the judgement seat without proper consideration due because the courts will be slow to so grant: Takori v Yagari [2008] PGSC 3; SC905 (29 February 2008). Therefore, what are the facts that the applicant relies on in prompting that the relief he seeks be granted, that the Notice of Motion filed 13th July 2018, and 18th March 2019 by the third Respondent in the proceedings OS (JR) No. 671 of 2004 and the eight other related proceedings in OS (JR) 673, 675, 676, 677, 707, 708, 709 of 2004 be dismissed for want of prosecution and non-compliance of the Orders of the Court of the 12th March, 2020.
  6. Firstly, looking at the motion by itself it has been outstanding since being filed of the 18th March 2019. It has not been served and is the subject of an order by this Court of the 12th March 2020, that the third defendant must serve it together with the affidavit in support on the plaintiff's within two working days from today without fail and file proof of service. And the third defendant is to pay costs occasioned by today’s adjournment. This Court presided by Justice Dingake issued these orders. There is no proof that it has been complied with, nor is there any variation to it. And this is clear from the evidence affidavit material relied on in this affidavit of Andrea B. Yauieb a lawyer in the employ of MS Wagambie Lawyers assisting Laias Kandi who has immediate carriage of the matter here, sworn of the 22nd June 2022 filed the 13th July 2022. Annexure “A” is the subject order of this Court. Annexure “B” is the letter to George Koare Lawyers dated the 16th March 2020 drawing their attention to the orders of the 12th March 2020, annexure “A” set out above whether they have complied with were confirmed. And from which reminder was issued the third Defendant’s Lawyers to serve Court Documents required to be served on their office satisfying the Court Order of the 12th March 2020. The third Defendant’s Lawyers did not comply and take heed to satisfy the orders despite this notice. That is service of the Notice of Motion filed 16th March 2019. And following on the 16th April 2020 attendance at court did not see the listing of that motion. Including instructions to raise the issue of the legal capacity and status of the third defendant, now respondent in law.
  7. This evidence is further strengthened by annexure “C” to the affidavit of the lawyer yet again, which is a letter addressed to the Deputy Registrar of the National Court dated the 27th July 2021 relating to this matter which is a taxation matter OS (JR) No. 671 of 2004 and the eight other related proceedings in OS (JR) 673, 675, 676, 677, 707, 708, 709 of 2004 Double U Square Consultancy Services Ltd v The State & Ors. The letter informs that on the 05th March 2020 the Court issued the following directional orders; The third Respondent’s amended Notice of Motion filed of the 18th March 2019 is fixed for hearing 1.30pm on Thursday 12th March 2020. And two, the parties are to file extract of submissions in support of their respective arguments. And in this regard the State has filed its extract dated the 13th March 2020, which is now before the Court. On the 12th March 2020 at 1.30pm the matter returned before Justice Dingake for hearing of the third defendant’s motion filed the 18th March 2020. Upon hearing it was noticed by the Court that there was no material filed in support of its cause by the third defendant. And further the subject notice of motion had not been served on the State. It prompted the court to issue further directional orders. Firstly the matter was now adjourned to the 16th April 2020 at 1.30pm. Secondly the third defendant must serve the notice of motion together with the affidavit in support of on the Plaintiff within two working days, from today without failure and file proof. Thirdly the third defendant is to pay the costs occasioned by today’s adjournment. And to which the third defendant has failed to carry out and comply with the orders of the 12th March 2020 and the hearing date on the 16th April 2020 at 1.30pm was abandoned. Plea was made to have the State’s Notice of motion filed the 18th December 2019 listed for directions to obtain a fixture for the hearing of that motion.
  8. Then annexure “D” is letter addressed to George Koare Lawyers who represent the third defendant in the respect of the subject matter that, the third defendant represented by them has shown no interest in the subject matter. And has not complied with the orders of Court of the 12th March 2020. And whether they are still acting for the third defendants to advice this fact. And drawing of the relisting of the matter and to proceed to ask for dismissal of their client motion of the 18th March 2019. And to proceed to deal with the Plaintiff’s, State’s substantive review under order 22 rule 60 of the National Court Rules.
  9. In my view, the evidence which I have set out above do not make out and prove on the balance that the notice of motion of the third respondent of the 13th July 2018 and the 18th March 2019 have been served nor have court orders made by this Court particulars set out above, being heeded to by the third defendant. Its lawyers have been given notice which they have received. But to no avail in heeding and fulfilling these orders. This is a matter which is long outstanding from the Judgment on Costs N8194 of the 2nd October 2018, the same parties awarded in favour of the third defendant that has been challenged by the State applicant. There is nothing out of the ordinary to challenge pursuant to Order 22 Rule 60 which remains open up to now. It is the substantive matter that must be addressed given the time it has taken to be on the records of the Court set out by the evidence above. From a Judgement of this Court presided by Deputy Chief Justice then Sir Salamo Injia, issued on the 30th November 2006 in a Judicial review matter where the State was ordered to pay the costs.
  10. Given these evidence, I see no reason to follow the Supreme Court's decision in Putupen v Sevua [2020] PGSC 34; SC1947 (22 April 2020). That was a case of a self-executing order where the appeal was not prosecuted with due diligence. There is no order self-executing here, but this a notice of motion filed by the third respondent that has been outstanding for prosecution since the 13th July 2018 and the 18th March 2019. It must be given its day in Court. Counsel has made no attempt to have so discharged since. It is now 15th March 2023 and it is still on the record without any material filed by the third defendant respondent that it remains. What is before the Court is what the applicant has filed. On the strength of that material there is nothing stopping not to grant the motion it seeks by pray number two pursuant. Accordingly, that is granted and the notice of motions of the 13th July 2018 and the 18th March 2019 by the third Respondent in this proceedings, OS (JR) No. 671 of 2004 and the eight other related proceedings in OS (JR) 673, 675, 676, 677, 707, 708, 709 of 2004 Double U Square Consultancy Services Ltd v The State & Ors is hereby dismissed in its entirety for want of prosecution and non-compliance of the Court orders set out above.
  11. In so doing, I remind following Takori (supra) that “our judicial system should never permit a plaintiff or a defendant to be driven from the Judgement seat in a summary way, without a Court having considered his right to be heard. A party has a right to have his case heard as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the court. That right cannot be lightly set aside.” But there is really nothing apparent or identifiable to sway otherwise than to dismiss for want of prosecution and non-compliance of Court orders. Which are serious as demonstrated by Kwimberi of Paulus M Dowa Lawyers v Independent State of Papua New Guinea [1998] PGSC 9; SC545 (27 March 1998) and PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010). There is no application to vary the initial order that has remained outstanding for compliance by the third defendant respondent. He will suffer the fate for non-compliance. His notice of motion is discharged for failing to comply with the orders issued. The pray of the applicant is granted as pleaded in his notice of motion.
  12. In respect of pray number 3 for amendment to consolidate the proceedings in particular the review book filed of the 25th September 2013 in this proceedings OS (JR) No. 671 of 2004 and the eight other related proceedings in OS (JR) 673, 675, 676, 677, 707, 708, 709 of 2004 Double U Square Consultancy Services Ltd v The State & ors and to have filing service on the third Respondents and the Taxing Officer an amended and Consolidated Review Book comprising the within proceedings and the 8 related proceedings within 14 days of today, that is granted as pleaded. And the law set out in National Development Bank Ltd v Noka Builders Ltd [2020] PGSC 44; SC1953 (5 February 2020) fortifies, because there is no prejudice all matters are related coming out of the same cause of action judgment granted at first instance in the substantive and then on costs. The Challenge is to the Costs under order 22 Rule 60 and it would be no lumping of different matters into one for convenience. Justice of the case demands and there is nothing apparent or identifiable than to grant as pleaded. It is made bona fide and not mala fide. It is made to expedite a long-procrastinated matter to finality. Even if there is a breach costs will be the cure. But that is not the case given the evidence set out above by the applicant. There is no reason to deny it apparent or identifiable. The pray is granted for the amendment and consolidation of the proceedings. And in the terms of the motion. That OS (JR) No. 671 of 2004 and the eight other related proceedings in OS (JR) 673, 675, 676, 677, 707, 708, 709, 711 of 2004 file is amended consolidated filed and served on the Third Respondents and the Taxing Officer an amended and Consolidated Review Book comprising the within proceedings and the 8 related proceedings within 14 days of today, which is Monday 03rd of April 2023. And the matter reverts for directions on Monday 10th April 2023 at 9.30am. Costs will follow the event and will be borne out by the third defendant.
  13. In respect of pray number four pursuant to Order 4 Rule 31 (1), (2) & (3) of the National Court Rules and the Constitution section 155 (4)the Applicant be granted leave to withdraw its notice of motion of the 18th December 2019. That is granted for the reasons set out above. It leaves no room except for leave to withdraw that notice of motion of the 18th December 2019. And it follows that costs of this proceedings incidental and of this application will be borne out by the third respondent following the event.
  14. The formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

MS Wagambie Lawyers: Lawyer for the Plaintiff/Applicant

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