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Gumanch Muipulg Wampnga Ltd v Samson [2020] PGNC 267; N8490 (4 September 2020)

N8490

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 201 of 2019

GUMANCH MUIPULG WAMPNGA LIMITED
Plaintiff

V
BENJAMIN SAMSON as Registrar of Titles
First Defendant

AND
LAND BOARD OF PAPUA NEW GUINEA
Second Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND
GUMANCH PLANTATIONS LIMITED
Fourth Defendant

AND
BANK OF SOUTH PACIFIC LIMITED
Fifth Defendant

Waigani: Miviri J
2020: 03^rd July

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating summons – Notice of motion – Dismissal of entire proceedings – Failure to comply directions Order 16 Rule 13 (13) (2) (a) NCR – Want of Prosecution Order 16 Rule 13 (13) (2) and Order 4 Rule 36 NCR – Summary dismissal – Basis for – prosecution without due diligence – plaintiff of – Adjournment application of– tribal fighting inability – no evidence – prejudice of applicant – balance discharged – dismissal of proceedings – costs follow event.

Cases Cited:

PNG Deep Sea Fishing Limited v Critten [2010] PGSC 53; SC1126

Kerry Lerro trading as Hulu Hara Investments limited v Philip Stagg, Valentine Kambori and the Independent state of Papua New Guinea, in Takori v Yagari [2007] PGSC 48; SC 905

Philip v Tiliyago [2019] PGSC 17; SC1783

Leo Duque v Avia Andrew Paru [1997] PNGLR 378.

Gelu v Somare [2009] PGNC 21; N3647

Louis Medaing v Minister for Lands and Physical Planning [2008] PGNC 264; N3952
Counsel:

N. Gimaia, for Plaintiff
E. Asigau, for Fifth Defendants
H. White, for First, Second & Third Defendants

RULING

04^th September, 2020

1. MIVIRI, J: This is the ruling on the notice of motion drawing from Order 16 Rules 13 (13) (2) (a) of the National Court Rules, “ the Rules,” by the fifth defendants seeking dismissal of the entire proceedings on the basis that the plaintiff has failed to comply with the directional orders of this court. And in the alternative under Order 16 Rule 13 (13) (2) and Order 4 Rule 36 of the Rules, that due diligence has not been accorded in the prosecution of the matter.
   
2. On the eve of the application the plaintiff applied for adjournment to obtain affidavits in response. The subject property of the proceedings was in Mt Hagen and there was tribal conflict relating. And one week was applied for to get that material. The Judicial Review proceedings were at the initiative of the Plaintiff who was not ready on the eve of the application. He filed no evidence to substantiate his application for adjournment including the facts he merely submitted from the bar: PNG Deep Sea Fishing Limited v Critten [2010] PGSC 53; SC1126 (10 December 2010). It could not be granted because there was no basis laid and accordingly, it was refused. The fifth defendant was granted leave to move his motion to dismiss the proceedings.
   
3. It was the fifth defendant’s case that the entire proceedings be dismissed because the plaintiff had failed to comply with directional orders of this court. To substantiate the assertions, they filed and relied on the affidavit of one Lydia David sworn 28^th February 20 and filed the 10^th March 20. The material particulars relevant to the application were that the proceedings were commenced on the 3^rd April 2019. And leave was granted on the 14^th May 2019 which also operated as a stay on the decision of the Land Board published in the National Gazette No 50 of 28^th January 2019. The substantive notice of motion for the review was filed on the 29^th May 2019. Which was responded by the fifth defendant with a Notice of intention to defend on the 31^st May 2020. The matter returned for directions hearing on the 2^nd September 2019 before Justice Gavera-Nanu, who ordered as set out in annexure “LD-6” affidavit of Lydia David, that all parties to file their respective affidavits by the 4^th October 2019 then adjourning it to the 7^th October 2019.
   
4. There was no appearance on the 7^th October 19 by the Plaintiff’s Lawyers. And on the 2^nd September 2019 the fifth defendant informed the plaintiff of the orders of court. And then followed by filing its affidavit material and serving them on the plaintiff in compliance with the orders of the 2^nd September 2019. On 25^th October 2019 the fifth defendant drew to the plaintiff whether they would file affidavits in response to that by fifth defendant. And also, whether they would draft and circulate the draft statement of agreed and Disputed facts and Legal issues. Plaintiff did not respond but did appear before Justice Gavera Nanu on the 11^th November 2019. Where the court issued the following directions; (1) the plaintiff to file and serve, the draft statement of agreed and disputed facts on all the defendants for their comments by 25^th November 2019; (2) the defendants to return the draft statement of agreed and disputed facts to the plaintiff with their comments by the 2^nd December 2019; (3) Plaintiff to file and serve the settled statement of agreed and disputed facts by 4^th December 2019; (4) Plaintiff to serve draft index to the review book on the defendants for their comments by 9^th December 2019; (5) Defendants to return the draft index to the review book to the Plaintiff with their comments by 16^th December 2019; (6) The plaintiff to file and serve settled index to the Review Book by 20^th December 19; (7) The Plaintiff to serve the draft Review Book on the defendants for their comments by 10^th January 2020; (8) The defendants to return the draft Review Book to the Plaintiff with their comments by 17^th January 2020; (9) And the Parties to certify the Review Book by 24^th January 2020; (10) After which the Plaintiff was to file and serve the certified Review Book by 27^th January 2020; (11) And then the matter return to court for directions on the 10^th February 2020 at 9.30am.
   
5. These were not just any other ordinary directions and the orders but intent of this court to bring the matter to a stage where it could be prosecuted, and finality reached. Judicial review is a time driven process to be filed within four months pursuant to Order 16 rule 4 of the National Court Rules. It was therefore important that these were followed and complied with. The failure or noncompliance were fatal to the proceedings. It procrastinated the matter and prolonged with unnecessary costs, time and resources to the parties. Broadly it congested an already compacted list of court cases. Therefore, the motion did not only serve the defendant but all others before the court. It was incumbent upon the defendants to establish on the balance of probabilities that there were directions orders that were given by this court that was not complied so that the discretion to dismiss was invoked in their favour.
   
6. Because dismissal of the entire proceedings denoted denying the litigant from the judgement seat, here the plaintiff. It had to be very clear that indeed the plaintiff had failed to carry out the directions and orders of the court. Because the court was slow to succumb to any application made. This was made clear in Kerry Lerro trading as Hulu Hara Investments limited v Philip Stagg, Valentine Kambori and the Independent state of Papua New Guinea, in Takori v Yagari [2007] PGSC 48; SC 905 (28^th February 2007), where it was held:
   

“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.”

In order words rules did not take the hand of Justice away because there was non-compliance. Taking the hand of Justice away meant the body was not there to serve Justice. It was therefore no light matter.

7. Here the substantive proceedings relate to a property in Western Highlands Province where the plaintiff had a mortgage with the fifth defendant and these are clearly set out by the affidavit filed by the fifth defendants of one Asher Waffi of the Bank of South Pacific dated the 04^th October 2019. Relevant excerpts for the purposes of this application is that the plaintiff owns Gumanch situated at Portion 35, Milinch Hagen fourmil Ramu, Western Highlands Province State Lease Volume 34 Folio 242. It was offered as security for credit facilities that the plaintiff obtained from Bank of South Pacific formally Papua New Guinea Banking Corporation. It defaulted and on or about the 30^th October 2002 the fifth defendant decided to exercise its power of sale as mortgagee inviting tenders for the purchase of Gumanch. It accepted the tender of one Raroki Investments Limited (RIL). But RIL did not pay the deposit as it had professed and so the fifth defendant withdrew its acceptance of RIL. And accepted the offer of the Plaintiff who paid a deposit of K 200, 000.00 in early April 2003 and took possession of Gumanch pending settlement. A number of court proceedings eventuated in the mean time and the lease expired over the subject land. It was renewed in November 2018 with the interest of the fifth defendant noted on the new lease. But a new lease was not issued because of this proceeding.
   
8. These facts depict that the case is a serious one for both the plaintiff and the fifth defendant. It cannot be the subject of continued procrastination and delay. The bank as the fifth defendant has very serious interests because it is owed money as a result of the mortgage on the subject land and the plaintiff must abide by the directions and orders like all in the proceeding to see out the hand of Justice. It was given opportunity to bring material in the cause it originated in court since the 29^th March 2019. Up to the date of this Judgement that would be more than a year and six months. And this application has been made against that backdrop by the fifth defendant. Adjournment will not improve the fact that the Plaintiff has a mortgage sourced from the fifth defendants.
   
9. The directions and orders are of this court and there has been a very serious breach by the plaintiff in observing and giving effect in executing them. Each has timeline drawn out within which to be effected and carried out. Failure in carrying out one leads to the others in a chain reaction. It cannot be ignored that these are very serious and continuing. On the eve of the application plaintiff sought an adjournment without any material to back it up. It could not on that basis be determined as to how serious the application was to adjourn. Plaintiff has not shown any good cause with material to save the proceedings. Because weighed against the material that the fifth defendant has placed it outweighs him. He satisfies the balance of probabilities necessary to invoke the application made in his favour. By the direction and the orders, he has been given time as in Philip v Tiliyago [2019] PGSC 17; SC1783 (3 April 2019) but has failed and like the facts and circumstances there, he too will face similar. Because as in Leo Duque v Avia Andrew Paru [1997] PNGLR 378 he has not set out any material by affidavit upon which he relies to save the proceedings. He invokes the discretion of the court but does not sway to provide. Because judicial review proceedings under order 4 rule 36 of the National Court Rules as here is concerned with administrative decisions and exercise of administrative functions and there is legitimate public interest in having them finalised as soon as possible. They must be dealt with expeditiously and delays to trial and the like should not be lengthy: Gelu v Somare [2009] PGNC 21; N3647 (16 April 2009). That has been the intent set out by the directions here. Of which plaintiff has not rebutted the material laid out by the fifth defendant. He would have attained similar as in Louis Medaing v Minister for Lands and Physical Planning [2008] PGNC 264; N3952 (21 February 2008).
   
10. Given all there is nothing against the court must protect the orders it makes and the process it sets in place upon the parties. Because as the Supreme Court said in Philip case’s (supra), “(1) Court orders and directions must be complied with and non-compliance shows disrespect to the Court and is at the peril of the defaulting party; and (2) the defaulting party must provide a reasonable explanation for the default.” As in that case that will be demise of the plaintiff as there is nothing on record before me to sway otherwise. Accordingly, his cause of action in this proceeding is dismissed in its entirety for non-compliance with court directions and orders made by this court with costs to follow the event forthwith.
    
11. The orders of the court are:
    
    • (i) The notice of motion of the fifth defendant drawing from Order 16 Rules 13 (13) (2) (a) of the National Court Rules and Order 16 Rule 13 (13) (2) and Order 4 Rule 36 also of the Rules is granted forthwith.
    • (ii) This proceeding is dismissed in its entirety forthwith and any orders directions befalling from it against the fifth defendant or any others are dismissed and have no effect forthwith.
    • (iii) The cost will follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

Liria Lawyers and Forensic Services: Lawyer for the Plaintiff/Applicant

Pacific Legal Group Lawyers: Lawyer for Fifth Defendants

Office of the Solicitor General: Lawyer for the First, Second & Third Defendants