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Kalkali v Samson [2020] PGNC 298; N8491 (4 September 2020)

N8491

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 540 OF 2019

BETWEEN:
LAUKU KALKALI
Plaintiff

AND:
BENJAMIN SAMSON-AS REGISTRAR OF TITLES
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2020: 3^rd September

PRACTICE & PROCEEDURE – Judicial Review & appeals – Originating Summons –Plaintiff unnecessarily put to Trial – cost follow event on Solicitor Client basis.

Cases Cited:

PNG Ports Corporation Limited v Canopus No 71 Limited [2010] PGNC 203; N4288

Counsel:

L. Tangua, for Plaintiff
H. White, for First & Second Defendants

RULING

04^th September, 2020

1. MIVIRI, J: This is the Ruling on the costs which has been disputed between the parties after the plaintiff’s application for Judicial review has been granted. The matter relates to the decision of the first defendant dated the 28^th September 2015 to cancel the Plaintiff’s title to the property known as Allotment 1 Section 361 Hohola National Capital District State Lease Volume 111 Folio 227. The State defendants have accepted that Judicial review lies and do not contest the action brought. Hence the orders of the court which is in the following terms agreed to by the parties bringing the matter to a close:-
   
   • (i) The plaintiff’s application for Judicial Review is granted.
   • (ii) The first defendant’s decision dated 28^th September 2015 to cancel the Plaintiff’s title to the Property Allotment 1 Section 361 Hohola National Capital District being the Land contained in State Lease Volume 111 Folio 227 is declared illegal, null and void ab initio forthwith.
   • (iii) The first Defendant’s decision to publish in the National Gazette No. G340 dated the 2^nd June 2016 his intention to issue a replacement title for the property at Allotment 1 Section 361 Hohola National Capital District, being the land contained in State Lease Volume 111 Folio 227 is declared illegal, null and void of no effect and quashed forthwith.
   • (iv) The Plaintiff is the owner in law of the property at Allotment 1 section 361 Hohola National Capital District, being the land contained in State Lease Volume 111 Folio 227.
   • (v) Within 21 days the first defendant shall amend the records of Allotment 1 section 361 Hohola National Capital District, being the land contained in State Lease Volume 111 Folio 227 to read that the title holder in law is Lauku Kalkali.
     
2. The State was drawn this fact even before the matter came into court on the 23^rd August 2016 by the Legal officer Corporate Policy & Legal Services Division within the office of the Secretary Department of Lands and Physical Planning that there was no cause to bring the matter to court. That administratively the Registrar could alter the records to accommodate so that the matter reverts to what has now been attained after brief entry in court set out by the orders above. And for the plaintiff he wrote several times to no avail pages 85 to 92 of the review book are excerpts of that fact which must be compensated. Including preparation for trial with the filing of the review book with extracts. That is further facts in favour of a solicitor client then a simple cost follows the event.
   
3. The originating summons is dated the 9^th August 2019 obviously the legal opinion by in house lawyer was not heeded hence the filing of this action for judicial review. And further in the light of related OS 280 of 2005 it ought to have dawned that what was set out by the inhouse legal opinion was materializing and therefore steps should have taken to avoid further work in court on the subject. From that opinion to the filing is almost three years and this is a year after filing.
   
4. There has been work done and what has been attained by the order above has not just come about without any expense on the part of the Plaintiff. These must be compensated because State knew all alone, they did not have a case but have gone right up to the eve in court to contest. Plaintiff has had to incur costs in this matter. It would not be a simple matter of each party bear its own costs because of these reasons. Rather given the facts it should be on a Solicitor Client basis and the second defendant will bear the cost of the plaintiff.
   
5. Costs are discretionary dictated by the facts and circumstances here it would be appropriate to order on a Solicitor Client basis and the second defendant will pay the costs of the plaintiff on that basis if not agreed to be taxed. The law is clear cost will follow the event: PNG Ports Corporation Limited v Canopus No 71 Limited [2010] PGNC 203; N4288 (30 July 2010). Here uncontested but with work put in by the Plaintiff and for that reason he will be compensated on solicitor Client basis at the expense of the second defendant.
   
6. The costs will follow the event on a Solicitor Client basis against the second defendant if not agreed to be taxed.

Orders Accordingly.

__________________________________________________________________

Tangua Lawyers: Lawyer for the Plaintiff /Applicant

Office of the Solicitor General: Lawyer for the Defendants