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Dads Investment Corporation Ltd v Samson [2021] PGNC 77; N8828 (18 May 2021)

N8828

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 405 OF 2018

BETWEEN:
DADS INVESTMENT CORPORATION LIMITED formally known as ERIC TRADING PTY LTD
Plaintiff

AND:
BENJAMIN SAMSON AS REGISTRAR OF TITLES
First Defendant

AND:
JUSTIN TKATCHENKO AS MINISTER FOR LANDS AND PHYSICAL PLANNING
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
JAMIE MAXTONE GRAHAM
Fourth Defendant

Waigani: Miviri J
2021: 18^th May

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of motion –Order 16 Rule 6(3) Order 16 Rule 13 (6), (4) (f), Order 16 Rule 3 (2)(a) NCR – Leave to amend Statement – Real issues to be determined – Amendment necessary to address – Prejudice – Leave was granted on the basis of Statement initially filed – Matters initially addressed – Material insufficient – Leave refused for amendment – cost follow event.

Cases Cited

Morobe Provincial Government v Tropical Charters Ltd [2010] PGNC 6; N3977

Nobetau v Bougainville Executive Council [2020] PGNC 176; N8395

Counsel:

L. David, for Applicant
M. Muga, for Fourth Defendant

P. Yom, for State

RULING

18^th May, 2021

1. MIVIRI, J: This is the ruling on the Plaintiff’s Notice of Motion pursuant to Order 16 Rule 6 (3) and Order 16 rule 13 (6) (4) (f) of the National Court Rules (“the Rules”) for leave to amend its Order 16 Rule 3 (2) (a) to clarify the grounds for review and include further grounds for review pursuant to the rules set out above.
   
2. It is a matter of judicial discretion and therefore facts and the material relied upon must speak so to grant. This is not the first time that the facts in this case has been seen out by this Court. It was first seen relating in an application for injunction on the 02^nd October 2020. Therefore, many of the facts there would be here canvased. And whether the intended amendment deviate from that and are anew and which underpin the cause of action so much so that without their incorporation the real issues of this case will not be determined. This is not a history running recounting exercise, but material fundamental pleadings that base the cause of action without which the action will not materialize so that injustice befalls the applicant. Too little pleading will not address the issue at heart to the cause of action. To much will be giving evidence without the basis. It is therefore a fine line and not a sponge soaking and being squeezed out.
   
3. What is sought will address the real issues underpinning the dispute in question. That is the amendments are necessary to identify the real issues and questions raised and will lead to final determinations of the issues raised. There is no prejudice to the other parties and the defendants. All in all, it will assist determination of the real issues posed both for the plaintiffs as well as of the defendants before the court. Because there ought to be an end to litigation and the issues outstanding, questions that must be answered as the real questions underlying must be incorporated so as to meet that end: Morobe Provincial Government v Tropical Charters Ltd [2010] PGNC 6; N3977 (22 March 2010).
   
4. Primarily it is upon the applicant to satisfy on the balance of probabilities by evidence that indeed since the grant of leave on the 20^th September 2018 the subject of the proceedings has been dealt with, including sale, mortgage, pledge, transfer, assignment or the doing of anything which effect has been to transfer to any person, entity, the property described as allotment 9 Section 33, Granville, Port Moresby, National Capital District. The reliance on the affidavit of David Wong Granville, Port Moresby, National Capital District, State Lease Volume 1 Folio 206 (the Land). He deposes that the subject land was initially purchased by way of a contract of Sale with previous registered proprietor one Sali Kinawa and it was registered by the Registrar of Titles following on the 24^th March 1993. But then it was illegally transferred to a Yu Qing Liang on or about November 2010 with an entry in the Journal numbered 653925. He took the matter to court in proceedings numbered OS No. 866 of 2010 against Yu Qing Liang, Henry Wasa, Registrar of Titles, Pepi Kimas, and Secretary for Lands and Physical Planning Lukas Dekena Minister for Lands and Physical Planning and the Independent State of Papua New Guinea. And was granted orders in his favour on the 10^th February 2012 that the Journal entry numbered 653925 dated 15^th March 2010 in respect of transfer of State Lease Volume 1 Folio 206 over Allotment 9 Section 33 Granville. National Capital District to Yu Qing Liang was invalid void ab initio and the Plaintiff was the registered proprietor. This was conveyed by letter to the defendants but not filled in the entries made by this court being inserted back into the Titles Registrar.
   
5. This evidence is supported by the further affidavit of the 15^th September 2020 of his lawyer Emmanuel Asigau of the firm Pacific Legal Group lawyers. Who deposes that further leave was obtained 27^th September 2019 to amend the Statement in support and that was done. It was further amended to set out the alleged breaches of the Land Act. On the 4^th March 2019 directions were issued by this court for filing service of affidavits and on the 15^th July 2019 these orders of the 4^th March 2019 were extended further for the full compliance of the parties. And further orders were made for the filing and service of the same. He continues, “Upon review of the amended Statement, it became obvious that further amendments were required to properly set out the grounds for Judicial review and to include certain facts relating to previous order of the National Court relating to land in question.” And that draft amended Statement is attached annexure “F”. And subject to the grant of the order to amend we intend to amend the Notice of Motion (pursuant to Order 16 Rule 5 (1) of the National Court Rules) filed the 27^th September 2018. And the draft of the amended notice of motion is attached annexure “G”. And these amendments are concluded as necessary for the real issues to be tried in the court.
   
6. From the original Statement in support under Order 16 Rule 3 (2) (a) filed 21^st June 2018 compared with the proposed amendment to it annexure “B” there appears to be facts emanating from the 8^th December 2010 leading up to the present that are intended by the application proposed to have by amendment included in the statement in support of the Judicial review. It is as if the history of dealings in that particular land including various court actions will be uncovered by that annexure if allowed. And no doubt will amass the immediate decision targeted in this review. That in my view is not the intent nor the sphere of judicial review.
   
7. Because judicial review is concerned with the process rather than the substance. And therefore, to recount in the way that has been proposed set out above would draw in matters external to the decision-making process affecting the plaintiff. This in my view is not allowed because leave is specific at the decision subject of review and not beyond as intended nor of all or any other matters. Judicial review has by order 16 rule 4 a time limitation of 4 months in which to begin the process. Drawing in matters of 8^th December 2010 to a decision possibly around 5^th September 2017 for which leave was granted would in my view defeat the purpose of Judicial review particularly with reference to the matters set out above: Nobetau v Bougainville Executive Council [2020] PGNC 176; N8395 (22 June 2020). The affidavit relied of David Wong of the 18^th February 2021 does not improve the cause for leave to be accorded as pleaded.
   
8. The application is opposed by the fourth defendant only and not the other three. He contends that the material relied has not tilted the balance so that a case for amendment has been made out. Particularly because since the grant of leave 20^th September 2018 now 3 years up to the present the applicant has done nothing to bring the matter to finality. He has a valid title to the subject property. He is the registered proprietor in the present. He has sworn an affidavit dated the 2^nd August 2019 annexure “A” of which is the State Lease for 99 years from 05^th May 2017 to 04^th May 2116 for residential purposes on all that piece of land known as Allotment/Portion 9 Section/ Milinch 33 Town/fourmil Granville in National Capital District containing an area of 0.1619 hectares or thereabout delineated or registered survey plan Urban one (1) catalogued 49/549. The instrument is dated 11^th July 2017.
   
9. Then annexure “B” is forfeiture of State Lease pursuant to section 122 (1) of the Land Act 1996 in the National Gazette number G296 of the 20^th October 2011 issued by one J. Ofoi that the subject land has been forfeited because the improvement conditions imposed have not been fulfilled. And notice issued to the lease holder has not materialized in return with developments hence the forfeiture.
   
10. These facts establish that prejudice will be caused the fourth defendant if leave is accorded as pleaded. In my view that is consistent because the plaintiff has sat on its cause. And from the facts set out above it did not immediately attend but has left the matter piecemeal. That is unnecessarily allowed prolonging of the matter. Because judicial review is time driven at minimum four months by Order 16 rule 4 (2) NCR. It would be causing substantial prejudice to the fourth defendant in view of the facts set out above.
    
11. The aggregate is that the Motion is denied with Costs to follow the event. Leave will not be accorded for the amendments intended. Matter must proceed to the next direction date of this court Monday 07^th June 2021 at 9.30am for further direction to hearing out the substantive matter.
    
12. The formal orders of the Court are:
    
    • (i) The application for leave to amend Statement is refused.
    • (ii) Costs will follow the event forthwith.
      

Orders Accordingly.

__________________________________________________________________

Pacific Legal Group Lawyers: Lawyer for the Plaintiff/Applicant

Simpson Lawyers: Lawyer for the Fourth Defendant

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