N7857
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 244 OF 2018

BETWEEN
TIKA & ASSOCIATES INC
Plaintiff

AND
DR. KEN NGANGAN, as the Secretary for the Department of Finance
First Defendant

AND
KEPSY K. PUIYE, as the Acting Secretary for the Department of Petroleum & Energy
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND
BANK OF SOUTH PACIFIC LIMITED
Fourth Defendant

Waigani:  Dingake J
2018: 16th, 23rd October &15th November
2019: 11th March

PRACTICE AND PROCEDURE – application to set aside consent order – procedural irregularity in obtaining consent order as grounds for application to set aside – application of s155 (4) Constitution considered in granting order to set aside – the grant of orders to set aside consent order would do justice in the circumstances of the case – application to set aside consent order granted

Counsel:

Mr. Robert Leo, for Plaintiff
Mr. Milfred Wangatau, for Defendants

9th May, 2019
1. 	DINGAKE J:	This is an application to set aside the consent orders granted by this Court on the 11th of October, 2018, on the grounds that there was procedural irregularity in obtaining the Consent Order as the Attorney General was misinformed when he endorsed the Consent Order.
2. 	On the 11th of October, 2018, this Court by consent issued the following orders:
“1)	The plaintiff agrees to discontinue these proceedings.
2)	The amount of K4,456,971.98 held in the account Bank of South Pacific titled Gobe Landowners Benefit Trust Account No. 7009424594 be transferred to the National Court Registrar’s Trust Account 1000583618 within 7 days from the date of this Order.
3)	The amount of K4,456,971.98 held in the National Court Registrar’s Trust Account 1000583618 be paid to Tika & Associates Bank South Pacific Port Moresby Account number 1000587532 within 7 days from the date of payment from Gobe Landowners Benefit Trust Account
3. 	The above order was subsequently stayed pending the filing of an affidavit by the Minister of Justice and the Attorney General as to whether he authorized that the Consent Order be granted.
4. 	The Attorney General, Mr Stephen Davis, has since filed an affidavit in which he says he was misled by the previous Acting Solicitor General, Ms. Faith Barton-Keene when she informed him that the first defendant consented to the purported consent order when that was not the case.
5. 	At paragraph 3, 4 and 5 of his affidavit filed on the 26th of March, 2019 the Minister of Justice & Attorney General states, in part that: 
“3.	I have confirmed instructions from the first defendant through letters dated 15th October, 2018 and 2nd February, 2019 that the purported consent order dated 11th October, 2018 was entered into without his written instructions and therefore should be set aside forthwith….
4.	On the foregoing reasons, I hereby retract my previous approval to endorse the purported consent order dated 11th October, 2018 relayed subsequently through the Acting Solicitor General’s Submission for Action dated 24th September, 2018.
5.	It is State’s position that the consent orders of 11th October, 2018 be set aside forthwith and the matter progressed to trial for the issues to be determined accordingly.”
6. 	In my mind having regard to the above, the question that I am being called upon to decide is whether there was any procedural irregularity associated with obtaining the consent order that justifies the said consent order to be set aside.
7. 	In terms of Section 155(4) of the Constitution this Court has the inherent power to set aside a consent order even when it is final. (Simon Mali v the State (2002) SC690.
8. 	In should be appreciated that the effect of a consent order in this case is to grant judgment in favour of the plaintiff and against the State without contest, resulting in the discontinuance of the proceedings.
9. 	In the case of The State v Zachary Gelu and Another (2003) SC716, at page 12, the Court stated the following with respect to the roles and functions of the Solicitor General and the Attorney General:
“In practice, where the State is a party in any litigation before the courts, the SG (Solicitor General) may act as an advocate if instructed to do so by the AG (Attorney General) in accordance with s.13(2) of the Attorney General Act. Where the SG is instructed, he must act in accordance with the instructions of the AG, such as to settle or not to settle a matter.”
10. 	In this jurisdiction it is settled law that the Solicitor General has no power to settle cases against the State without the instructions of the Attorney General.
11. 	It follows in my view that if such consent was improperly obtained, his consent would amount to no consent at all, in law.
12. 	Given the evidence of the Attorney General, which I have referred to earlier, I am satisfied that his endorsement of the consent order was improperly and or irregularly obtained and therefore no valid consent was given. In other words, I am satisfied that there was procedural irregularity associated with obtaining of the Consent Order sought to be set aside.
13. 	The plaintiff (respondent) has argued, among other things, that this proceedings having been discontinued there is nothing this Court can do. It seems to me that every case must turn or its own circumstances. There are situations where to be overly technical may be contrary to the dictates of justice. This is one such case. 
14. 	The order of discontinuance must be properly contextualized. The matter having been purportedly settled, it followed that the proceedings ought to have been discontinued, as indeed happened. The paragraph on discontinuance cannot be understood in isolation. At the end of the day, there is an order of Court in place that on the evidence was improperly obtained and that cannot be ignored. The discontinuance of the proceedings does not extinguish the consent order. This Court is mandated pursuant to s.155(4) of the Constitution to make “...in such circumstances as seem proper .... orders as are necessary to do justice in the circumstances of a particular case”.
15. 	In this particular case, I am satisfied that the consent of the Attorney General was improperly or irregularly obtained and was not a valid consent.
16. 	In all the circumstances of this case, I am satisfied that this is an appropriate case to exercise the inherent power under Section 155(4) of the Constitution to set aside the Consent Orders granted on the 11th of October, 2018.
17. 	Costs are a matter of the discretion of the Court. Given that in this case, the application to set aside was necessitated by the actions of the defendants, it would be fair that costs be in the cause.
18. 	In the result:
i.	The consent order granted on the 11th of October, 2018 is set aside.
ii.	This matter is to be progressed before another judge and the plaintiff must take the lead in progressing same without delay.
iii.	Costs be in the cause.
___________________________________________________________
Leo Lawyers: Lawyers for the Plaintiff   
Office of the Solicitor General: Lawyers for the Defendant