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Isu v Ofoi [2014] PGNC 216; N5518 (3 March 2014)

N5518

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 706 OF 2012

BETWEEN

PHILIP ISU, GEORGE BAURE, JOHN DAVANI, ANS LESTER SERI, ALL LANDOWNERS OF THE VIRANI MON, WO'O AND WOFUN CLANS, SINIFARA KONYASI SINAPA AND UAIKU VILLAGES, COLLINGWOOD BAY, ORO PROVINCE
First Plaintiffs

AND

CHRISTIAN MARAVIS, KERNELL ISARA AND DANIEL MESS, ALL LANDOWNERS OF THE UBIR AND OYAN TRIBES, WANIGELA, COLLINGWOOD BAY, ORO PROVINCE
Second Plaintiffs

AND

JOHN OFOI,
ACTING SECRETARY FOR THE DEPARTMENT OF LANDS AND PHYSICAL PLANNING
First Defendant

AND

HENRY WASA,
REGISTRAR OF TITLES
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND

SIBO MANAGEMENT LIMTED
Fourth Defendant

AND

WANIGELA AGRO INDUSTRIAL LIMITED
Fifth Defendant

AND

ANG AGRO INDUSTRIAL LIMITED
Sixth Defendant

Waigani: Makail, J
2014: 20th February & 03rd March

PRACTICE & PROCEDURE – Application To Dismiss Proceedings – Grounds Of – Failure To File Notice Of Motion Following Grant Of Leave – Effect Of – No Proceedings On Foot – National Court Rules – O16, Rr. 3 & 5

PRACTICE & PROCEDURE – Inherent Jurisdiction – Inherent Power Invoked – Dispensation Of Requirement To File Notice Of Motion – Grounds Of – Matter Ready And Fixed For Trial – Dispute Of Public Interest And Importance – Interests Of Justice – No Prejudice To Opposing Parties –Constitution – S.155(4).

PRACTICE & PROCEDURE – Application To Vary Interim Injunction – Application Made After Inter-party Hearing – Jurisdiction Of – Whether Matter Raised Constitute Change In Circumstances – Application Misconceived And Refused – National Court Rules –O12, R. 8(4).

Cases cited:

Peter Makeng v Timbers (PNG) Limited (2008) N3317
Timbani Longai v Steven Maken & The State (2008) N4021
Tzen Pacific Limited v Kanawi Pouru & The State: OS (JR) No 715 of 2010 (Unnumbered & Unreported Judgment of 25th April 2013)
Mainland Holdings Limited v Paul Robert Stobbs & 3 Ors (2003) N2522
Mark Ekepa & Ors v William Gaupe & Ors (2004) N2694
Ramu Nickel Limited v Imuruba Clan & Kurumbukari Landowners' Association & Ors (2007) N3252
Anthony John Polling v Motor Vehicles Insurance (PNG) Trust Limited & Anor [1986] PNGLR 228
Graham B. Price & Anor v Pacific Legal Group Lawyers (2004) N2509

Counsel:

Mr J Sirigoi, for First & Second Plaintiffs
Mr W Hagahuno, for Third Plaintiff
No appearance, for First, Second & Third Defendants
Mr L Kari, for Fourth and Fifth Defendants
Mr I Shepherd, for Sixth Defendant

RULING

03rd March, 2014

1. MAKAIL, J: The first and second plaintiffs claim that they are customary landowners of two portions of land described as portion 113C Milinch of Murua Fourmil Tufi and portion 143C Milinch Kupari Fourmil Tufi. The first, second and third defendants granted Special Agricultural & Business Leases ("SABL") on these portions of land to the fourth and fifth defendants for agricultural purposes. Subsequently, the fourth and fifth defendants subleased them to the sixth defendant to develop and plant oil palm. Aggrieved by the decision of the first, second and third defendants, on 28th November 2012, the plaintiffs commenced proceedings for judicial review pursuant to O16 of the National Court Rules. They claim that the defendants did not comply with the procedure established by statute to obtain these leases and seek among others, an order in the nature of certiorari to quash the decision.

Commencement of Proceedings

2. On 28th November 2012, the first and second plaintiffs commenced proceedings by filing the following documents:

(1) Originating Summons,

(2) Notice of Motion,

(3) Statement made pursuant to O16, r. 3(2)(a),

(4) Affidavit Verifying Facts by Christian Maravis,

(5) Notice of Application for Leave to Apply for Judicial Review to the Secretary for Justice, and

(6) A number of Affidavits by the plaintiffs.

3. On 06th December 2012, the Court granted leave to the plaintiffs to apply for judicial review. Following this, parties attended a number of directions hearings to prepare the matter for trial and eventually, on 29th November 2013, filed a review book. Around that time also, the third plaintiff was joined in the proceedings. Trial was fixed for 14th February 2014 but was vacated because there were two interlocutory applications pending and needed to be heard. The first by the sixth defendant to join the proceedings; it was heard and leave was granted on 15th February 2014; the second by the fourth and fifth defendants to dismiss the proceedings, in the alternative, to vary the interim injunction restraining them from dealing with the leases until the determination of the proceedings and further, an interim injunction to restrain the plaintiffs, their agents and supporters from publishing adverse articles on the internet and newspapers until the determination of the proceedings. This is the ruling on these applications.

Dismissal of Proceedings

4. The main ground for the dismissal of proceedings is that following the grant of leave, the plaintiffs failed to file a notice of motion as required by O16, r. 5 of the National Court Rules. Rule 5 states:

"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.

(2) The notice of motion must be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made in them, the notice of motion must also be served on the clerk or registrar of the court and, where any objection to the conduct of the Judge is to be made, on the Judge.

(3) Unless the court granting leave has otherwise directed, there must be at least 14 days between the service of the notice of motion and the day named in it for the hearing.

(4) Within 21 days after grant of leave the notice of motion shall be allocated a date for hearing by the Registrar after consultation with the parties.

(5) An affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the notice of motion must be filed before the notice of motion is entered for hearing and, if any person who ought to be served under this Rule has not been served, the affidavit must state that fact and the reason for it, and the affidavit shall be before the Court on the hearing of the notice of motion.

(6) If on the hearing of the notice of motion the Court is of opinion that any person who ought, whether under this Rule or otherwise, to have been served has not been served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the notice of motion may be served on that person." (Emphasis added).

5. The fourth and fifth defendants supported by the sixth defendant submit that the filing of the notice of motion is mandatory because it is the document by which the plaintiffs invoke the jurisdiction of the Court to determine the application for judicial review. Without it, there can be no proceedings for judicial review. In this case, as the plaintiffs did not file and serve a notice of motion under O16, r. 5, the entire proceeding is flawed and should be dismissed.

6. They rely on the cases of Peter Makeng v Timbers (PNG) Limited (2008) N3317; Timbani Longai v Steven Maken & The State (2008) N4021 and Tzen Pacific Limited v Kanawi Pouru & The State: OS (JR) No 715 of 2010 (Unnumbered & Unreported Judgment of 25th April 2013) where in Peter Makeng, the Court held that O16 of the National Court Rules provides a complete and comprehensive code of procedure for application for judicial review and that parties must comply with this procedure.

7. In Timbani Longai, the Court held that filing a notice of motion under O16, r. 5 of the National Court Rules is a prerequisite to an application for judicial review. The Court further held that it is not one of those prerequisites that may be dispensed with under O1, r. 7 of the National Court Rules. Where a plaintiff fails to file it, it renders the proceedings incompetent and must be dismissed. The Court took the same view in Tzen Pacific Limited. They submit that based on these cases, the proceedings should be dismissed. When the Court asked counsel for the parties what the notice of motion filed on 28th November 2012 was for, the defendants submitted that it was irrelevant because it was filed pursuant to O16, r. 3 of the National Court Rules.

8. The plaintiffs concede that they did not file a notice of motion under O16, r. 5 but submit that they did file a notice of motion under O16, r. 3 and this was sufficient for the purpose of complying with the requirement to invoke the jurisdiction of the Court for the substantive hearing. Apart from filing the notice of motion, if one considers it, it sets out in detail the nature of the orders they seek, the nature of the decision they seek to review and the defendants should be able to respond to them without much difficulty. In response to the Court's question as to what the notice of motion was for, they submitted that it was filed because it was a "practice" necessary to get the application for leave listed for hearing before the motions Court.

9. Rule 3 states:

"3. Grant of leave to apply for judicial review. (UK. 53/3)

(1) An application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with this Rule.

(2) An application for leave must be made by originating summons ex parte to the Court, except in vacation when it may be made to a Judge in chambers, and must be supported -

(a) by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and

(b) by affidavit, to be filed before the application is made, verifying the facts relied on.

(3) The applicant must give notice of the application to the Secretary for Justice not later than two days before the application is made and must at the same time lodge with the Secretary copies of the statement and every affidavit in support.

(4) Without prejudice to its powers under Order 8 Division 4, the Court hearing an application for leave may allow the applicants statement to be amended, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit.

(5) The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

(6) Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgement, order, conviction or other proceedings which is subject to appeal and a time is limited for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

(7) If the Court grants leave, it may impose such terms as to costs and as to giving security as it thinks fit.

(8) Where leave to apply for judicial review is granted, then -

(a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders; and

(b) if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ." (Emphasis added).

10. The other reason for opposing the application is that based on the decision of Injia, DCJ (as he then was) in Ramu Nickel Limited v Imuruba Clan & Kurumbukari Landowners' Association & Ors (2007) N3252, it is too late to raise such procedural objection to the competency of the proceedings. If they wished, they should have raised it at the directions hearing. For this further reason, the application should be dismissed.

11. In the alternative, they submit that in its inherent jurisdiction under s. 155(4) of the Constitution, the Court has discretion to dispense with the requirement to file the notice of motion and extend time by 14 days to file it. One reason for this is that the matter was ready for trial and fixed for trial on 14th February 2014. They should have proceeded but because of this interlocutory application, trial was vacated. They further say that the matter is ready for trial because parties went through directions hearing, settled and filed a review book for the trial and gross injustice would occur if the Court does not allow them to go to trial to resolve this long standing dispute.

12. The other reason is that the dispute is of public interest and importance. The leases are two of many SABLs which the State has issued around the country. Many landowners and interest groups have complained and questioned the legality and propriety of these SABLs and their sustainability. They submit that as a result of these concerns, the National Government has placed a moratorium on issuance of new SABLs and established a commission of inquiry to investigate these complaints and concerns. Yet the first, second and third defendants saw fit to issue these leases to the third and fourth defendants contrary to the moratorium.

13. They further submit that another important consideration is the prejudice the opposing party will suffer if the strict requirement to file a notice of motion is dispensed with. They submit that the defendants will suffer no prejudice because the same relief they seek in the notice of motion are set out in the originating summons. As the originating summons was served on the defendants at the commencement of the proceedings, the defendants are and should be well aware of the orders they seek from the Court. In addition to that, they filed and served the review book. All the materials necessary for the trial are in it and the defendants should be in a position to response to them without much inconvenience.

14. Finally, they submit that the filing of the notice of motion is a procedural requirement and may be dispensed with under O1, r, 7 of the National Court Rules just like dispensing with the requirement to serve an amended statement of claim as in Anthony John Polling v Motor Vehicles Insurance (PNG) Trust Limited & Anor [1986] PNGLR 228 or dispensing with the requirement by lawyers to sign a notice of intention to defend and defence as in Graham B. Price & Anor v Pacific Legal Group Lawyers (2004) N2509. For all these reasons, they submit that it is in the interests of justice that they be given leave to file the notice of motion and that it be included in an amended review book to be filed at the convenience of the Court.

15. The application to dismiss the proceedings is a discretionary matter. I must be satisfied that there are good grounds to dismiss the proceedings. I accept the defendants' submission that O16, r. 5 requires a plaintiff to file a notice of motion after grant of leave for the substantive hearing. The notice of motion is the process by which a plaintiff seeks relief. The plaintiffs concede that they did not file a notice of motion pursuant to O16, r. 5. But what I don't understand and appreciate is that the plaintiffs have filed a notice of motion at the commencement of the proceedings. That is the document filed on 28th November 2012. What was it for?

16. I do not accept the defence submission that notice of motion is irrelevant because it was filed pursuant to O16, r. 3 of the National Court Rules. On the other hand, the first and second plaintiffs' submission that it was filed because it was a "practice" necessary to get the application for leave listed for hearing before the motions Court makes a lot of sense from a practical point of view. In my view, this notice of motion cannot be ignored. The threshold issue is whether this notice of motion is sufficient for the purpose of O16, r. 5.

17. To determine this issue, one has to ask; what is the purpose of filing the notice of motion? The purpose is to invoke the jurisdiction of the Court to determine the substantive review. If a notice of motion was filed at the commencement of the proceedings seeking leave to apply for judicial review and also substantive relief, why is there a need to file another notice of motion following grant of leave under O16, r. 5? To me, it does not make sense.

18. I say this because according to O16, r. 3, the following documents are filed at the commencement of the proceedings:

(1) Originating Summons,

(2) Statement made pursuant to O16, r. 3(2)(a),

(3) Affidavit Verifying Facts by plaintiffs, and

(4) Notice of Application for Leave to Apply for Judicial Review to the Secretary for Justice.

19. It is not uncommon that at the time of filing these documents, affidavits are also filed at the same time. If not, they are usually filed before the date fixed for the hearing of the application for leave. But what has happened and has been happening is that at the commencement of the proceedings, a plaintiff files these documents and also files a notice of motion. The reason for filing the notice of motion is as what the plaintiffs submitted a "practice" necessary to bring the application for leave to apply for judicial review to the attention of the motions Court for hearing.

20. Strictly speaking, it is not necessary to file a notice of motion because according to O16, r. 3, it is not one of those documents that must be filed when commencing proceedings for judicial review. It is the originating summons that must be filed and must plead leave as the sole relief the plaintiff seeks from the Court. Upon grant of leave, O16, r. 5 requires the plaintiff to file a notice of motion for the substantive hearing of the judicial review. The notice of motion is the document which sets out the nature of the decision to be reviewed and the substantive relief the plaintiff seeks from the Court.

21. This procedural requirement is similar to an application for leave to give notice out of time under s. 5 of the Claims By and Against the State Act, 1996. Other examples are the requirements to extend time to give notice under s. 54(6) of the Motor Vehicles (Third Party Insurance) Act, and appeal under ss. 221 & 231 of the District Court Act. In these cases, a plaintiff files an originating summons and seeks leave. Upon grant of leave, the plaintiff may institute proceedings by way of a writ of summons against the State or the Motor Vehicles Insurance Limited, as the case may be, or if it is an appeal, a notice of appeal to the National Court.

22. The two authorities cited by the defence in Timbani Longai and Tzen Pacific Limited are decisions of the National Court and are not binding on this Court. Thus, I am not bound to follow them. But in my view they correctly represent the law in so far as the requirement to file a notice of motion following grant of leave is concerned. But it is not clear whether the Court considered the issue of the notice of motion filed at the commencement of the proceedings. It has been raised in this case and this is the factual difference between those two cases and this case.

23. This is not a case where the plaintiffs did not file a notice of motion. They did and it must be appreciated that it sets out in detail the nature of the decision to be reviewed and the relief the plaintiffs seek from the Court. A close examination of it shows that the plaintiffs seek leave to review the decision of the first, second and third defendants to grant the leases to the fourth and fifth defendants. If leave is granted, they seek to have the Court review that decision at the substantive hearing. In my view the notice of motion sufficiently sets out the decision sought to be reviewed and relief and the defendants should be able to adequately response to them at the substantive hearing.

24. This leads me to the question of prejudice. While the plaintiffs canvassed it in support of their alternative argument, I am of the view that it equally applies to their primary argument. In my view the defendants have not shown how they have and will be prejudiced if the Court accepts the notice of motion filed at the commencement of the proceedings for the purpose of complying with O16, r. 5 of the National Court Rules.

25. Similarly, while the submission that the dispute is of public importance and interest was made in support of their alternative argument, I am of the view that it equally applies to the primary argument. The defence do not take issue with this submission and I accept that the dispute is of public importance and interest. The dispute has come this far and to simply ignore this consideration would cause grave injustice to the plaintiffs. It would be unjust and certainly illogical for the Court to turn the plaintiffs away when they have filed a notice of motion at the commencement of the proceedings. This added reason leads me to find that the notice of motion filed at the commencement of proceedings is sufficient for the purpose of O16, r. 5 of the National Court Rules.

26. For the foregoing reasons, I find the application for judicial review is properly before the Court and I can assume jurisdiction to deal with it. It follows the application to dismiss the proceedings is refused. Given this finding, I do not consider it necessary to discuss the alternative submissions of the plaintiffs on this issue.

Variation of Interim Injunction

27. Turning to the application to vary the interim injunction, the fourth and fifth defendants submit that the interim injunction is very board and extends beyond the disputed portions of land to include portions of land that are not subject of the application for judicial review. These portions are 135, 136, 137 and 138. They are crown land and owned by individuals including Guy Robiemon and John Dumare. The fourth, fifth and sixth defendants have moved onto these portions of land, machinery and materials for the purpose of clearing the land to build an oil palm nursery. The interim injunction has prevented them from carrying out these activities. The interim injunction has adversely hampered their operations and caused them to lose money.

28. They concede that they did canvass this issue in their submission to the Court in one of the earlier hearings and the Court held in favour of the plaintiffs and granted the interim injunction. But they say that the plaintiffs misled the Court by not identifying correctly the disputed portions of land and as a result the Court made a "blanket" order over all these portions of land. For this reason, they submit that the Court has discretion to vary the interim injunction under O 12, r. 8(4) of the National Court Rules where serious injustice is and will be caused to the opposing party or the continuation of the interim injunction is unnecessary or inappropriate. They rely on Mainland Holdings Limited v Paul Robert Stobbs & 3 Ors (2003) N2522 and Mark Ekepa & Ors v William Gaupe & Ors (2004) N2694 as authority for the proposition that the Court has discretion to vary an interim injunction where there is change in circumstances.

29. The plaintiffs submit that this Court lacks jurisdiction to vary the interim injunction and the appropriate venue for the fourth and fifth defendants to raise this issue is in the Supreme Court by way of an appeal. This is because they did canvass the issue in their submission during the hearing of the application for interim injunction and the Court ruled in favour of the plaintiffs. If they are aggrieved by that, they should file an appeal against that ruling to the Supreme Court. In response, the fourth, fifth and sixth defendants submit that they did file an appeal against the ruling of the Court but withdrew it because it was also open to them to raise it again by way of an application to vary the interim injunction.

30. The plaintiffs further submit that if the evidence supporting the application is considered closely, there is no evidence of a copy of a title to verify the defence assertion that Guy Robiemon owns portion 138. As for John Dumare's interest in portion 135, while he has a licence to occupy the land for 12 months from 28th February 2012 there is there is no evidence and it is doubtful whether it was extended beyond 12 months after it expired on 28th February 2013.

31. I have considered the case of Mainland Holdings and accept the defence submission that the Court has discretion under O12, r. 8(4) of the National Court Rules to vary an interim injunction where there is change in circumstances since the interim injunction was first granted. I also accept their submission that the Court has discretion to vary or set aside an interim injunction where it was obtained by fraud or the Court was misled in relation to certain facts which led the Court to grant the interim injunction.

32. The first issue is whether the undisputed portions of land were new set of facts since the grant of the interim injunction and constitute a change in circumstances. The defence concede that the issue was canvassed at one of the hearings of this Court and after deliberation, the Court ruled in favour of the plaintiffs. It was an interparty hearing. In my view it is not a new event or set of facts that has occurred since the grant of the interim injunction which would constitute a change in circumstances. In my view if the defendants are aggrieved by the decision because the Court ruled against them on this issue, they should appeal to the Supreme Court and raise it there.

33. Secondly, whether it can be successfully proven that the interim injunction was obtained by fraud or the Court was misled in relation to certain facts which led to the Court granting the interim injunction, as the defence conceded that parties canvassed this issue in their submissions at a previous hearing, and the Court ruled against the defendants on this issue, this ground cannot be sustained. For these reasons, I find the application is misconceived and refuse it. Given this finding, it is not necessary to consider the other submissions of the plaintiffs on this issue.

Restraining of Publication of Adverse Articles

34. As to the final application for interim injunction against the publication of adverse articles on the internet and newspapers, the fourth and fifth defendants did not pursue it in their submissions. Thus, I take it that they have abandoned it and will not consider it. The other reason is this while they rely on O12, r. 1 of the National Court Rules to seek this interim relief without pleading it in the amended notice of motion, I am not prepared to deal with it in this manner. This is because the proposed order is substantial in nature and by not pleading it, they have not given sufficient notice to the plaintiffs of the application. Until they comply with this procedural requirement, their request will not be entertained.

Order

35. The orders are:

(1) The application to dismiss the proceedings is refused.

(2) The application to vary the interim injunction is refused.

(3) Costs shall be in the cause.

(4) Time shall be abridged.
_______________________________________________________________
Sirigoi Lawyers: Lawyers for the First & Second Plaintiffs
Williams Attorneys as city agent for Yariyari Lawyers: Lawyers for the Third Plaintiff
Acting Solicitor-General: Lawyers for the First, Second & Third Defendants
PNG Legal Services Lawyers: Lawyers for the Fourth & Fifth Defendants
Ashurst Lawyers: Lawyers for the Sixth Defendants