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Kundi v Minimbi [2019] PGNC 284; N8003 (18 September 2019)

N8003

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 625 of 2014

BETWEEN:
JACOB KUNDI
First Plaintiff

AND:
PASTOR ISREAL MINIMBI
Second Plaintiff

AND:
STANLEY NUI
Defendant

Waigani: Thompson J
2019: 6 September; 18 September

Application under Order 12 Rule 8 (3) (a) to set aside order for dismissal of proceedings – order made in absence of party – Court has jurisdiction to determine application – onus on applicant to show satisfactory explanation for not appearing, for delay in application, and show merits of the case – onus not discharged

Counsel:

W. Kaum, for the First Plaintiff
M. Kuma, for the Defendant

18^th September, 2019

1. THOMPSON J: On 9 September 2014 the Plaintiffs issued these proceedings, seeking Declarations that the 1^st and 2^nd Plaintiffs were the legal owners of a parcel of customary land, and what purported to be an “Order in the nature of a Declaratory” that the Defendant give vacant possession, and that the police be empowered to evict the Defendant and his family from the property.
2. At various times throughout the proceedings, the parties were directed to attempt to settle the claim.

3. In October 2015 the Defendant’s application to dismiss the proceedings for being an abuse of process, was refused.

4. The matter was eventually listed for trial on 13 March 2017. Neither the Plaintiff nor his lawyers appeared on that date, and so on 13 March 2017 the proceedings were dismissed for want of prosecution.

5. On 20 March 2017 the 1^st Plaintiff filed a Notice of Motion to set aside the order for dismissal, which was granted on 5 May 2017. The 1^st Plaintiff was ordered to pay the Defendant’s costs before the matter would be relisted for hearing. On 15 June 2017, the proceedings were stayed, pending payment of the Defendant’s costs by the 1^st Plaintiff.

6. On 26 September 2017 the 1^st Plaintiff filed a Notice of Motion for the issue of contempt proceedings against the Defendant’s lawyer. On 20 February 2018, the application was dismissed for want of prosecution.

7. On 1 November 2018 the 1^st Plaintiff filed a Notice of Motion to set aside the dismissal. By consent on 21 February 2019, the 1^st Plaintiff withdrew the application for contempt, the stay of proceedings was varied, and the proceedings resumed.

8. On 14 March 2019 the matter was set for trial on 15 May 2019.

9. On 28 March 2019, the 1^st Plaintiff filed a Notice of Motion to set aside a Conversion Order made by the Land Titles Commission on 25 April 2018, to set aside the Defendant’s Certificate Title, and for various other orders including vacant possession and eviction of the Defendant. Further, the 1^st Plaintiff applied to set aside the Consent Orders made on 21 February 2019, and to reinstate his application for contempt, and finally, he sought to set aside the order of 14 March 2019 setting the matter down for trial.

10. The Notice of Motion came before this Court on 15 May 2019, the same day as the trial. Neither the Plaintiff nor his lawyer appeared on that date. The Defendant therefore made an application to dismiss both the Notice of Motion and the substantive proceedings for want of prosecution, and that application was granted. The proceedings were dismissed, with costs.

11. On 15 July 2019, the 1^st Plaintiff filed a Notice of Motion to set aside the orders.

12. On 5 September 2019, the Defendant filed an application to dismiss the 1^st Plaintiff’s Notice of Motion for being defective.

13. At the hearing of both Motions on 6 September 2019, the 1^st Plaintiff’s lawyer appeared, and as a preliminary issue, sought leave to amend his Notice of Motion, essentially to correct the defects in the motion. The Defendant objected, but the 1^st Plaintiff was given leave to amend his motion. The hearing of the motion then proceeded.

14. Following a long line of cases, it is well established that in order to set aside an order made in the absence of a party, the applicant must show three matters:

(a) He must show that there is a reasonable explanation for allowing the order to be made

(b) He has to show that he has made the application to set aside the order promptly after he became aware of the order, or if not, provide a reasonable explanation for the delay, and

(c) He must show that he has a prima facie case on the merits. (see Christopher Smith v Ruma Constructions Ltd (2002) SC695 et al).

15. In relation to this Court’s jurisdiction to hear this type of application, Order 12 Rule 8 (3) (a) entitles this Court to set aside an Order where it has been made in the absence of a party, whether or not the absent party is in default. It is not necessary for the applicant to have to appeal to the Supreme Court.

16. Order 12 Rule 8 (4) provides that in addition to its power under Rule 8 (3), the court can set aside any order except, relevantly, an order for dismissal of proceedings. The effect of this sub-rule is that the court has power to set aside any interlocutory order made inter partes, except an order for dismissal. That sub-rule is not applicable here, because the orders which the 1^st Plaintiff seeks to set aside are orders which were made in the 1^st Plaintiff’s absence. (see Thomas Rangip and anor v Peter Loko and anor (2009) PGNC 122).

17. In relation to the application, I refer first to the 1^st Plaintiff’s explanation for allowing the Orders to be made in his absence.

18. The 1^st Plaintiff says that he was unaware of the hearing date for his Notice of Motion. The court documents show that on 21 February 2019, the 1^st Plaintiff’s lawyer appeared, and the matter was ordered to return to court on 14 March 2019 for allocation of a trial date. On 14 March, neither the Plaintiff nor his lawyer appeared, the matter was allocated a trial date of 15 May 2019, and a sealed copy of that Order was served on the 1^st Plaintiff.

19. The 1^st Plaintiff’s lawyer says that on the day before the trial, on 14 May 2019, he suffered severe bodily pain, and was taken to hospital. He produced a medical certificate stating that at 8.00am on 14 May 2019, the lawyer was found to have nerve impingement in his neck, and would be unfit for duty until 16 May. He was given pain killers. The 1^st Plaintiff says that on 15 May he intended to return to the hospital to meet with the doctor, and sent a text message to that effect, to his office. He says that no lawyer was able to attend to the matter, and so he asked the 1^st Plaintiff to inform the court of his position and request an adjournment. He says that the 1^st Plaintiff attended court on 15 May, at around 10.00am, by which time the proceedings had already been dismissed.

20. I refer next to delay in filing the application to set aside the orders.

21. The 1^st Plaintiff’s lawyer says that in the week after the proceedings were dismissed, he was still taking pain killers and was unable to fully attend to his work.

22. This submission is somewhat undermined by the further submission that his uncle had passed away on 5 May 2019 and he had not travelled to the highlands for the burial preparations because of the trial on 15 May, but as the trial did not proceed and as he started to recover from his illness, he left Port Moresby on 18 May, and stayed in Enga for a week for the burial.

23. The 1^st Plaintiff says that after he returned to Port Moresby on 25 May, he had to immediately take care of all his other matters. He does not say why this matter was not given priority. He does not say why this application was not promptly filed, and nor did he give any further reason why he did not file it until two months later, on 15 July 2019.

24. Finally, I refer to the ground relating to the merits of the case.

25. The 1^st Plaintiff’s lawyer says that the proceedings relate to a dispute over ownership of customary land. If so, then this court has no jurisdiction to determine the dispute. Section 15 of the Land Titles Commission Act provides that the Commission has exclusive jurisdiction to hear and determine all disputes concerning ownership by custom of land.

26. A perusal of the documents on the file shows that ownership of the customary land was given to the Defendant by an order of the Land Title Commission on 25 April 2018. Section 34 of the Act provides that a person aggrieved by a decision of the Commission, may apply to the Chief Commissioner for a review. Section 38 of the Act provides that a person aggrieved by a decision of the Commission, whether after review or otherwise, may appeal to the National Court within ninety days of the decision or review. There is no evidence that the 1^st Plaintiff or any of the other Plaintiffs had complied with this provisions by either seeking a review from the Chief Commissioner or by filing an appeal in the National Court within three months of the decision on 25 April 2018.

27. These proceedings, which were filed in 2014, were not judicial review proceedings, and did not seek to quash any decisions concerning ownership of the land. It seems that, due to the Plaintiff’s delay in prosecuting these proceedings, they were overtaken by events, and with the passage of time, the issue of ownership was determined in April 2018.

28. The 1^st Plaintiff by his Notice of Motion filed on 28 March 2019 purported to seek orders setting aside the Commission’s decision of April 2018 and the Defendant’s Certificate of Title. The 1^st Plaintiff was seeking prerogative orders including quashing the Land Title Commission order and grant of title. As he was effectively seeking orders in the nature of certiorari, then pursuant to Order 16 Rule 1 of the National Court Rules, his application had to be made by way of an application for judicial review, and he certainly could not obtain substantive relief on a motion in any event.

29. In relation to the Plaintiff’s failure to appear at the hearing date, I am not satisfied with the explanation. In circumstances where the 1^st Plaintiff’s earlier Notices of Motion and indeed the substantive proceedings had previously been dismissed for want of prosecution because the 1^st Plaintiff and his lawyers failed to appear, they should have been especially alert to conduct the proceedings diligently and to ensure that it did not happen yet again. The evidence does not show that the 1^st Plaintiff’s lawyer was wholly incapacitated on 14 or 15 May, and does not show he had made any real effort to arrange for another lawyer to appear on his behalf. No explanation was given for why the 1^st Plaintiff himself did not appear at 9.30am.

30. In relation to delay, the 1^st Plaintiff’s lawyer frankly concedes that the delay in filing this application was attributable to the firm’s negligence. However, a lawyer’s negligent conduct in allowing his client to suffer a default order, is not a valid reason for setting aside the default order, (see Leo Duque v Avia Andrew Paru (1997) PNGLR 378). The client’s remedy is to bring proceedings against his lawyer for negligence.

31. In relation to the merits, there was no legal basis for the Notice of Motion filed on 28 March 2019, which had no merit whatsoever. In relation to the substantive proceedings, if they do in fact concern a dispute over ownership of customary land, then this court has no jurisdiction, and the proceedings are without merit. Even if there had been some merit, the dispute was subsequently determined by the Land Titles Commission on 25 April 2018 in favor of the Defendant. In the absence of any appeal from that decision, there could no longer be any merit in the proceedings.

32. In conclusion, the 1^st Plaintiff has failed to provide a satisfactory explanation for allowing the orders to be made in his absence, has failed to provide a satisfactory explanation for his delay in filing this application, and he has failed to show any merits in the Plaintiff’s proceedings.

33. For these reasons:

(a) The relief sought in the 1^st Plaintiff’s Notice of Motion filed on 15 July 2019, is refused.
(b) The 1^st Plaintiff is to pay the Defendant’s costs, to be agreed or taxed.
______________________________________________________________
Kimbu & Associate Lawyers: Lawyers for the Plaintiff
Kuma Lawyers: Lawyers for the Respondent