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Manlel v AJ Timber Development Ltd [2020] PGNC 447; N8626 (9 November 2020)

N8626

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 163 OF 2019

BETWEEN:
JOHN MANLEL AS CHAIRMAN OF ANDRU ARAMAI TIMBER INVESTMENTS LIMITED
First Plaintiff

AND:
ANDRU ARAMAI TIMBER INVESTMENT LIMITED
Second Plaintiff

AND:
AJ TIMBER DEVELOPMENT LIMITED
First Defendant

AND:
GOODWILL AMOS In his Capacity as the Acting Managing Director for the Papua New Guinea Forest Authority
Second Defendant

AND:
PAUL SAI’I CHAIRMAN OF THE BOARD OF DIRECTORS PAPUA NEW GUINEA FOREST AUTHORITY
Third Defendant

AND:
PAPUA NEW GUINEA FOREST AUTHORITY
Fourth Defendant

Waigani: Miviri J
2020: 13^th October

PRACTICE & PROCEDURE – Judicial Review & appeals – notice of Motion – Order 16 rule 13 (13) (1)(2)(a)(b) Summary disposal – Order 12 Rule 40 (1) (b) (c) Order 8 Rule 27 NCR – Material sufficient – Balance discharged Motion granted – dismissal of proceedings for incompetency – cost in the cause.

Cases Cited:

Seravo v Bahafo [2001] PGNC 122; N2078
Rawson Construction Ltd v Department of Works [2005] PGSC 39; SC777

Counsel:

S. Dadada, for Plaintiff
I. Shepherd, for the First Defendant

RULING

09^th November, 2020

1. MIVIRI, J: This is the Ruling on the First Defendant’s notice of motion of the 08^th September 2020 seeking pursuant to Order 16 Rule 13 (13) (1) and (2) (a) (b), of the National Court Rules, “the Rules” dismissal of the within proceedings for want of prosecution.
   
2. The plaintiff to pay the costs of the defendants if not agreed to be taxed.
   
3. It is supported by the affidavit dated the 16^th July 20 of Ian Raymond Shepperd sworn 15^th July 20 and filed the 16^th July 20. He is the lawyer for the First defendant and has conduct of the matter. He sets out the chronology that this proceeding was commenced on the 22^nd of March 2019 by originating summons seeking which was amended on the 23^rd April 2019. And on the 15^th August 2019 the plaintiff filed a motion seeking inter alia, an injunction to restrain the first defendant from carrying out logging operations in the Andru Aramai Local Forest Area which motion was returnable on the 20^th August 2019.
   
4. On 2^nd September 2019, a notice of intention to defend was filed by the deponent lawyer for the first defendant. In addition, he filed an affidavit in response to the Plaintiff’s notice of motion of the 15^th August 2019 which is document 26 on the court file. A further affidavit filed was of Mr Asip chairman of the first defendant.
   
5. On the 10^th October 2019, the Plaintiff filed further notice of motion seeking amendments to the proceedings which motion was returnable 24^th October 2019. The two motions have been adjourned on several occasions and on other occasions has been adjourned because the court has not been able to locate the file or that there has been no Judge available to hear the matter.
   
6. On the 9^th June 2020 the lawyer for the first defendant wrote to the Plaintiff’s Lawyer advising him that as leave had not been granted to apply for Judicial Review and the plaintiff’s two notice of motion were still outstanding application would be made to dismiss the proceedings for want of prosecution which is annexure “A” of the affidavit. The matter came on before me on the 2^nd July 2020 and no appearance was made by the Plaintiff and so the motion was adjourned to 9.30am on 8^th September 2020. This was the subject of a letter dated the 3^rd July 2020 annexure “B” of the affidavit. And no response hence this application for summary disposal of the matter.
   
7. Contrary to the evidence of the first defendant the leave to Judicially review document number 6 order was given 9^th April 2019 and entered on the 17^th April 2019 to apply for Judicial review of the decision of the second, third and fifth defendants respectively in issuing a timber permit TP No. 14-10 to the first defendants, which is dated the 26^th January 2018 knowing full well that the Andru Aramai Local Forest area is owned by the (21) twenty one clan leaders. And order 2 was for the Plaintiff to file and serve the Notice of Motion in accordance with Order 16 Rule 5 within 21 days from today. And further that the plaintiffs serve the draft directions for the defendants’ comments before the return date. And the application for Judicial review be adjourned to 6^th May for directions hearing.
   
8. Document number 7 dated 23^rd April 2019 is the Substantive Notice of Motion in accordance with Order 16 Rule 5 of the National Court Rules by the Plaintiffs move at trial for the following orders;
   
   • (i) That pursuant to leave granted on the 9^th April 2019, the plaintiffs apply for judicial review of the decision of the second, third and fourth defendants made the 26^th day of January 2018, in issuing a timber permit to the First Defendants being TP No. 14-10 as set out in paragraphs 2, 3, 4, and 5 hereof pursuant to Order 16 Rule 5 of the NCR and Section 155 (4) of the Constitution of Papua New Guinea.
     
   • (ii) An Order in the nature of certiorari be issued to remove into this Honourable Court and to quash the decision of the second, third, and fourth defendants dated the 26^th January 2018, in granting or issuing a timber permit being TP No. 14-10 to the First Defendant contrary to the provisions of Section 46 of the Forestry Act.
     
   • (iii) And further or an alternative order that by operation of section 85 (1) (a) of the Forestry Act the Honourable Court issues an order that the relevant timber permit TP No. 14-10 issued to the first defendant by the second, third and fourth defendants be removed into this Honourable Court and suspended and or cancelled in that the first Defendant made a material misrepresentation as owner of the local Forest area of Andru Johonna aka Andru Aramai when in fact and in law it was not.
     
   • (iv) A further order that upon suspension and or cancellation, the second, third and fourth defendants issue a replacement timber permit to the second plaintiffs by operation of section 46 of the Forestry Act.
     
   • (v) An order in the nature of a mandatory injunction made pursuant to section 155 (4) of the Constitution of Papua New Guinea, Order 16 Rule 8 and Order 12 Rule 1 of the NCR thereby permanently and perpetually restraining the second third and the fourth defendants by themselves or their servants, agents, officer, employees, or whomsoever or howsoever in reissuing any timber permit to the first defendant and or any other entity except the Second Plaintiff as it is their customary owner of the local Forest area of Andru Johanna aka Andru Aramai.
     
   • (vi) And order in the nature of permanent and perpetual injunction thereby restraining the said second, third, and Fourth defendants by themselves or their servants, agents, officer, employees, or whomsoever and howsoever in tampering and causing nuisance with the operations of the Andru Johanna aka Andru Aramai local forest area landowners and the developers.
     
   • (vii) That the defendant pay cost to the Plaintiff to be taxed if not agreed.
     
9. This is supported by Document 13 the affidavit of John Manlel sworn 29^th May 2019 who is the chairman of the Andru Aramai Timber Investments Limited (AATIL) deposing that the 21 clan leaders have formed AATIL as their umbrella company to harvest the logs within the Andru Johanna local forest area of Gasmata West New Britain Province. The first defendant has five clans, Pesi, Kaingiwiak, Alip, Awa, and Yetngin, that own less than 25% of the Andru Johanna local forest area in Kimbe, West New Britain Province. And was previously issued TP No. 14-10 by the PNG Forest Authority without lodging any formal application.
   
10. In essence for the purpose of this application the affidavit in all material terms states that process was not followed and that Timber Permit TP No. 14-10 has not been cancelled that a notice to show cause was issued and that serious irregularities were drawn out by the second defendant in that letter. And the Chairman of the Provincial Forestry Management Committee Williamson Hosea did write to the Managing Director of the PNG Forest Authority advising that the logging and marketing agreement issued to the applicant be reconsidered null and void on reasons that the due process was not followed, less than 75% of the landowners consent was given to AJ Timber Development Limited to sign the LMA with Niugini Lumber Merchant Limited. And the letter is attached annexure “C” to that affidavit
    
11. Further affidavit John Manlel is of the 15^th August 2019 is further evidence of the intent to see out judicial review in this matter.
    
12. More recent affidavit is document number 37 dated the 2^nd October 2020 of Casper Apundamatiet filed the 2^nd October 2020. He reconfirms the particulars set out in the affidavit of the First Plaintiff who refutes that the plaintiff have not progressed the matter and points to the matters set out above in the institution of the proceedings and that leave has been obtained and the substantive notice of motion has been filed particulars set out above. And points out this fact in the affidavit of John Manlel dated the 30^th September 2020 filed the 2^nd October 2020 document 38 on the court records evidencing that he has been attending the registry of the court here flying over ticket payment and butt attached evidencing and continued pursuit to see out the matter. Money has been continually spent flying out of Kimbe here for the case pending in court board and lodging here in Port Moresby for the case. And this is confirmed by letter dated 1^st September 2020 under hand of Casper C S Apundamatiet Lawyer of advice to Ashurt Lawyers Po. Box 850 Port Moresby subject is OS 163 of 2019 and of its return to Court at 9.30am for hearing of the Plaintiffs motions Tuesday 08^th September 2020. The letter is acknowledged at Ashurt Lawyers at 12:40pm by Joyce Kama. Then there is annexure D2 of the affidavit of Casper C S Apundamatiet Lawyer, letter dated the 09^th September 2020 addressed to Ashurts Lawyers subject is OS JR 163 of 2019 and of its adjournment to Tuesday 15^th September 2020 at 9.30am for the hearing of the Plaintiff’s notice of motion. It was adjourned on 08^th August 2020 because Justice Miviri was not well. And a copy of the notice of change in lawyers was also forwarded therein.
    
13. This is confirmed by the affidavit of service of Casper Apundamatiaet of the 30^th September 2020 document number 36 of the service of the change of lawyers and of the hearing for the 15^th September 2020 service upon Ashurt Lawyers at Level 11 MRDC haus on one Cecilia Golu the details are independently annexure “A”. The same is also served upon the PNG Forestry Authority at Hohola on one Moro A Ikupu Administration Assistant Secretary. Then recently there is administrative instruction by a lawful directive of the 28^th May 2020 from the office of the PNG forestry whereby Contractor Niugini Lumber Merchant Limited were directed to put a stop to Unauthorized Clan Members to sign consent orders on behalf of Authorized Clan Leaders (head Clans) of the 21 clans that have pledge and sign statutory declaration indicating their support to Andru Aramai Investment Limited. Because the matter was in court and therefore the Forest Authority must at all cost avoid unnecessary breach in the law.
    
14. In my view the sum total is that the matter is not as contended and applied by the first defendant but that the evidence set out above clearly shows that the plaintiffs want to see out the matter in a proper hearing for Judicial review as they have pleaded by the substantive Notice of motion filed awaiting hearing and determination. There is clear justification to maintain the proceedings by the way that the first and second plaintiffs have acted in the matter to see out finality. There is no lack of prosecuting the application and there is more than enough reason set out by the evidence particularized above for the continuation of the action: Seravo v Bahafo [2001] PGNC 122; N2078 (21 March 2001) approved in Rawson Construction Ltd v Department of Works [2005] PGSC 39; SC777 (4 March 2005) consequently that is the facts here and applied will not see out the motion of the first defendant. There is reasonable cause of action with merit set out by the evidence above and therefore the balance has not been tilted in favour of the motion by the first defendant.
    
15. Accordingly, the formal orders of the court are:
    
    • (i) The first defendant motion is denied.
    • (ii) The entire proceedings remain intact.
    • (iii) The matter will return to the directions hearing on Monday 16^th November 2020 at 9.30am for the obtaining of a trial date and related further directions in the matter.
    • (iv) The cost will follow the event.

Ordered accordingly.

__________________________________________________________________

Ama Wali Lawyers: Lawyers for the Plaintiff/Applicant

Ashurst Lawyers: Lawyers for First Defendant