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Iorive v Migul Hambabu Land Group Incorporated [2021] PGNC 420; N9126 (2 September 2021)

N9126

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 930 OF 2017

BETWEEN:
WAYNE IORIVE & 9 OTHERS ON THEIR OWN BEHALF AND AS REPRESENTATIVES OF THEIR CLANS AND VILLAGES IN DOURA/KOIARI AREA IN CENTRAL PROVINCE AS AUTHORIZED BY MEMBERS IN THE SCHEDULE ATTACHED HERETO
Plaintiff/Applicant

AND:
MIGUL HAMBABU LAND GROUP INCORPORATED
First Respondent

AND:
IRUNA ROGAKILA IN HIS CAPACITY AS THE REGISTRAR OF INCORPORATED LAND GROUPS, DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Respondent

AND:
TIRI WANGA IN HIS CAPACITY AS THE SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Respondent

AND:
THE HON JUSTIN THATCHENKO IN HIS CAPACITY AS THE MINISTER FOR LANDS & PHYSICAL PLANNING
Fourth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Miviri J
2021: 2^nd September

PRACTICE & PROCEDURE – Judicial Review & Appeals – Notice of Motion – Dismissal of Proceedings Order 16 Rule 13 (13) (2) (a) & (b) NCR – Want of Prosecution – Order 12 Rule 1 – Inordinate delay Prosecution – 4 years Pending – Prejudice outweigh Maintaining Action – Materials relied sufficient – balance discharged – Motion granted – Cost follow event.

Cases Cited:

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Counsel:

J. Kolo, for Plaintiff/Applicant
No appearance for the Defendants

RULING

2^nd September, 2021

1. MIVIRI, J: This is the ruling on the Plaintiff’s/Applicant’s notice of motion of the 12^th August 2021 seeking dismissal of the entire proceedings pursuant to Order 16 Rule 13 (13) (2) (a) and (b), and Order 12 Rule 1 both of the National Court Rules.
   
2. It has been moved ex parte because despite service by email deposed to in the affidavit of Tumu Andake of the 30^th August 2021 that email has been made to Kiduhu@fairfax.com.pg and also Eava Geita eava.geita@justice.gov.pg on Tuesday 31^st August 2021 at 9.14am there is no response from both. The email sets out the last appearance of the 19^th August 2021 and further adjourned because there was no service to 02^nd September 2021 at 9.30am. It is clear technology has assisted but to no avail by the appearance of Counsel on record from the record of the proceedings. The adjournment to service of the proceedings has brought not return of the plaintiff who instituted the proceedings.
   
3. He relies on the following affidavits to pursue his cause; Affidavit of Beven Goma of the 12^th August 2021 who deposes that, he is the Deputy Chairman of the First Defendant ILG and Ward Councillor Besea Village Vanapa Brown River Area. The plaintiffs took them to court over their ILG and took out restraining orders restraining them with their people from carrying out activities pertaining to their people’s welfare and economic activities. They followed due process to register their ILG certificate of incorporation was issued by the first defendant. They organized a huge gathering marking the occasion. They were privileged to host the then Minister for Communications and Technology Hon Francis Manake MP who graced with his presence and unveiled the certificate of incorporation. And annexure “A” comprises the colour photographs of the occasion depicting.
   
4. But despite they have been denied the privileges of that ILG by reason of this court proceedings which has prevented them. And there is no seriousness in the prosecution of this matter. This is confirmed by the affidavit of Elvis Jalog Javu also of the 12^th August 2021. He is the chairman of the First Defendant ILG and Community Leader of Besea Village Vanapa Brown River Areas. He deposes that the plaintiffs have arbitrarily suffocated him, together with his people from the enjoyment of their land by engaging police and private security to arrest and lock them out of their land. He has taken refuge elsewhere to avoid. And which is to the gain of the Plaintiffs. They have not taken the imitative to proceed with proceedings filed and to come with a solution to it.
   
5. Affidavit of search has been mounted Tuesday 10^th August 2021 on the developments to the file by Tumu Andake process server employed with the firm Kolo & Associate Lawyers who are engaged by the first defendant. The last activity on the file is as set out in annexure “A”. Search form conforming details of the search, “Affidavit of Service filed by the Plaintiff’s Lawyers on 29^th November 2018. Last endorsement on 02^nd July 2018. There is no activity on the file. Nor is there any hearing date allocated.”
   
6. The file cover shows that the matter was adjourned to the registry on the 06^th February 2017 and has since remained in that manner except for 02^nd July 2018 when orders in the nature of the consent draft directions were endorsed by the Court. There is no other activity on the file from the diary on the file cover. This evidence depicts that the plaintiff who were then represented by the J. Tera have not done anything to prosecute the matter with diligence.
   
7. The matter it would appear is a dispute over the customary ownership of the subject land and that there is no consent to the ILG certificate being issued because of that fact. State Agencies offices and the department of Lands are an integral party to the proceedings have also through the office of the Solicitor General not taken keen to see out this matter. With land comes developments for the immediate people there and also the Country as a whole. Officers of the State must be vigilant to ensure these are accorded what is due in law. Litigants who institute proceedings do so at the discretion to see out in good time. Judicial review leave for which is open four (4) months after the decision. Here is a cause of action that has been opened by the reference number here as of 2017 and in 2^nd September 2021 it has not been prosecuted since first filed 30^th November 2017 originating summons for leave for Judicial review by Fairfax Legal PLN Level 3 Pacific Place Building Corner Musgrave Street & Champion Parade P. O. Box 1779 Port Moresby, NCD, Phone numbers 321 4470 facsimile 321 3714 email kiduhu@fairfax.com.pg. It is clear leave has not been obtained in the matter for judicial review now outstanding for almost four years from that date of filing set out above.
   
8. Apart from the Consent directions of the 02^nd July 2018 by all parties endorsed by this Court Justice Gavara-Nanu the matter has not returned in accordance by 10^th September 2018 even though the consent directions are signed by all the parties before the court. There is no evidence of variation of these consent directional orders of this Court.
   
9. The power to dismiss a cause of action is discretionary on the Court. It must be exercised with due care and discharge. There ought to be proper basis established by material properly laid out before the Court for it to exercise in accordance. It should not be a case of summary disposal of a case in the hands of the litigant against the defendant but gauged by properly sanctioned evidence warranting apparent identifiable that there lies no other except as applied to dismiss the proceedings because due diligence has not been prompted by he who alleges but has not seen out with vigour the same: Takori v Yagari [2007] PGSC 48; SC905 (28 February 2007). Today the plaintiff has not appeared. His last appearance by his counsel on record by the firm Fairfax Legal PLN is of the 02^nd July 2018. There is no reason on the file as to why there is no activity after that fact, nor is there any response pursuant to the directions of the Court for service to be effected as set out above. Not even the office of the Solicitor General has responded to the matter and made appearance at todays hearing. The price is now four (4) years in the making to bring this case on for an application for leave for judicial review. Because leave was called to see out the actions of the second defendant in judicial review over his allocation of the ILG certificate to the First Respondent. If it was a genuine cause of action it would see presence even at four (4) years later in this Court. That has not occurred despite notice given particulars I set out above.
   
10. The consent directional orders of the 2^nd July 2018 has not seen reality in an application for leave now 4 years. There is nothing on the records except to acceded as applied by the applicant to grant his motion for dismissal of the entire proceedings for want of prosecution: Philip v Tiliyago [2019] PGSC 17; SC1783 (3 April 2019). Accordingly, the orders are granted in terms of the motion sought. Costs will follow the event forthwith.
    
11. The formal orders of the Court are:
    
    • (i) The Notice of motion is granted in its entirety forthwith.
    • (ii) The proceedings are dismissed for want of Prosecution.
    • (iii) Costs will follow the event forthwith against the plaintiff.
      

Orders Accordingly.

__________________________________________________________________

Kolo & Associates Lawyers: Lawyer for the Plaintiff/Applicant

No appearance for Defendants