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National Superannuation Fund Ltd v Yawenaik Holdings Ltd (also known as Yawenaik Holdings Ltd) [2023] PGNC 187; N10234 (3 April 2023)

N10234


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS NO. 778 OF 2015 (HR) CONSOLIDATED WITH OS (JR) NO. 682 OF 2013


NATIONAL SUPERANNUATION FUND LIMITED
Plaintiff


V
YAWENAIK HOLDINGS LIMITED ALSO KNOWN AS YAWENAIK HOLDINGS LIMITED
First Defendant


AND
CHRIS MANDA IN HIS CAPACITY AS SURVEYOR GENERAL
Second Defendant


AND
ROMILLY KILA PAT AS A DELEGATE OF THE MINISTER OF LANDS AND PHYSICAL PLANNING
Third Defendant


AND
HON. BENNY ALLAN IN HIS CAPACITY AS MINISTER OF LANDS AND PHYSICAL PLANNING
Fourth Defendant


AND
HON. POWES PARKOP IN HIS CAPACITY AS CHAIRMAN AND OTHER MEMBERS OF THE NATIONAL CAPITAL DISTRICT PHYSICAL PLANNING
Fifth Defendant


AND
BENJAMIN SAMSON IN HIS CAPACITY AS REGISTRAR OF TITLES
Sixth Defendant


AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant


AND
SANAMO GROUP LIMITED
Eighth Defendant


AND
KEITH LAHUI, CHAIRMAN AND OTHER MEMBERS OF THE PNG LAND BOARD
Ninth Defendant


AND
DELTA CORPORATION LIMITED
Tenth Defendant


AND
ALLAN BANIYAMAI
Eleventh Defendant


AND
BARRICK SOMI TEMERI
Twelfth Defendant


Waigani : Miviri J
2023: 24th March, 3rd April


PRACTICE & PROCEDURE – Judicial Review – Notice of Motion – Tenth Defendant Of – Order 16 (13) (13) (1) (2) Order 12 Rule 8 (2) (b), (3) (a) and (4) NCR – Summary Determination – Failing to Comply with Directions or Orders – Setting Aside Varying Court Order – costs in the cause.


Cases Cited:
Timothy v Marus [2014] PGSC 50; SC1403
Larelake v Hon. Kavo [2009] PGNC 193; N3809
Ekepe v Gaupe [2004] PGNC 82; N2694
Takori v Yagari [2007] PGCS 48; SC905
Dan Kakaraya v. Michael Somare, Koiari Tarata and Francis Kaupa (2004) SC762
Yama v PNGBC Ltd [2008] PGSC 42; SC922
Kerr v Motor Vehicles Insurance (PNG) Trust [1978] PNGLR 438


Counsel:
G. Geroro, for Plaintiff
P. Wariniki, for the First & Eight Defendants
L. Dos, for Tenth Defendant


RULING

03rd April, 2023

  1. MIVIRI, J: This is the Ruling on the 10th Defendant’s notice of motion of the 20th February 2023, pursuant to Order 16 Rule 13 (13) (1),(2), Order 12 Rule 8 (2) (b), (3) (a) and (4) of the National Court Rules and section 155 (4) of the Constitution. He prays to:
  2. He relies on the affidavit of Beryl Kumo sworn of the 14th and filed 15th March 2022. Also, that of Luwi Dos sworn of the 02nd and filed the 20th February 2023, together with a further affidavit of the said Luwi Dos sworn and filed as of the 03rd March 2023.
  3. Essentially the following is clear that the lawyer B. Kumo on that day 07th March 2022 was appearing before the Supreme Court in another matter. But saw that this matter was listed for directions, also on that day, and she was informed by the lawyer for the fifth defendant that the matter was listed before Justice Dingake’s Court, and that draft consent orders were endorsed. They filed on the 15th March 2022 an application to set aside the purported consent order of the 07th March 2022. On the 19th April 2022 the matter came on before this Court presided by Justice Dingake. It was requested that both this and that of the First to the Eight Defendants Motions be given a special fixture. As the motion of the 10th Defendant’s were not moved within a month it was stale in breach of the Rules and was struck out as a result. But on the 03rd May 2022 the first and eight defendants’ motion to dismiss the matter was successful and matter was dismissed for non-compliance of Court Orders. Which was successfully appealed by the Plaintiff heard on the 15th December 2022. It was allowed on the ground that the Consent orders of the 07th March 2022 were not set aside and still active when the matter was determined summarily on the 03rd May 2022.
  4. By this decision dismissal by the National Court has been set aside by the Supreme Court. In my view it means that application by the 10th Defendant challenges that decision alleging that it ought to be set aside and the whole proceedings dismissed for failure of the plaintiff to comply with the orders issued of the 08th November 2018. The notice of motion of the 10th Defendant challenges an order that is now almost 4 and half years old. No explanation is apparent or identifiable on the material set out above, given why it has taken this course this long since the order is of 2018.
  5. It is necessary in my view to gauge what are the terms of this Consent Order of the 07th March 2022. It is Court Document number 109 dated the 14th March 2022 entered of the 07th March 2022. Examining it, Order 1 acknowledges orders 7 and 8 of the 12th September 2017 remaining both in place but varied and discharged in that they do not apply to the following portions of land located outside Portion 3162 and 2123 and registered in the names of the respective persons indicated alongside each of land below:
  6. The order continues at (2). For the avoidance of doubt, each of the persons named in Order 1 are at Liberty to apply for planning permission, construct and develop mortgage, Charge, transfer, and or otherwise deal with each of their respective portions of land.
  7. The plaintiff shall circulate to the Defendants a draft Statement of Agreed and Disputed Facts (the statement) on or before 21st March 2022.
  8. Any response to the Statement to be provided by the defendants on or before 11th April 2022.
  9. Parties to agree to the contents of the statement and sign the Statement on or before 18th April 2022, with the Agreed and signed statement then being filed by the Plaintiff.
  10. If the parties intend on filing additional Affidavits to rely on at trial, the parties shall do so by 18th May 2022.
  11. The parties shall compile the review book by 06th June 2022.
  12. The plaintiff shall circulate the Review Book for consideration by the Defendants by 27th June 2022.
  13. The Review Book shall be filed and served by the 04th July 2022.
  14. The trial of shall be conducted by way of evidence through the use of affidavits.
  15. The matter shall return for further directions at 9.30am on 18th July 2022.
  16. The plaintiff and the Defendant are at liberty to apply to extend these directions on 3 clear days notice.
  17. The defendants who are not in court today, for reasons unknown, that is the 05th, 06th , 7th and 8th Defendants are at Liberty to apply for extension or variation of the Orders provided they do so within the next 7 days from today and/or after endorsement of the Orders.
  18. The Counsel for the Plaintiff is ordered and directed to serve the defendants who are not present today the Orders no later than 11th March 2022.
  19. The time for entry of these is abridged to the date of Settlement by the Registrar which shall take place forthwith.
  20. In my view the particulars of the Orders of the 07th March 2022 sets out steps necessary eventually to the hearing and disposal of the matter. Originally it is referenced as consolidation of the proceedings OS (JR) 789 of 2015 with OS (JR) No. 682 of 2013. It is therefore by that reference an old matter outstanding relating to land primarily the responsibility of the second to the seventh defendants. And whose discretion may have allegedly in some material way effected the Plaintiff. And it is geared to the trial of the matter from the orders set out in the Court Order of the 7th March 2022. It is now the 24th March 2023 when it has been called up in the Notice of motion of the 10th Defendant. By itself there really is no harm to parties for and against. Because in compliance of the orders directions will be beneficial to both sides. But due diligence must be shown in its prosecution because to drag defendants into Court must end in time reasonable to all parties for the due dispensation of the matter. Here is a matter that is from 2013 and 2015 consolidated. Obviously per se it must be prosecuted with due diligence.
  21. It is clearly voiced to bring the matter to a closure for trial by March 2022. It is now the 24th March 2023 a year later that application has been made by the 10th Defendant invoking the Order and Rule of the Court set out above. It is not the first time that this matter has come in this way, as a similar motion was stale in breach of the Court rules and was struck out on the 19th April 2022. And that was at the initiative of the 10th Defendant then as now. Here the 10th Defendant in reliance of the affidavit of lawyer B. Kumo and Luwi Dos urges that it was not aware of the hearing scheduled on the 07th March 2022. It did not consent nor did it endorse the subject orders. And for that reason, they were irregularly obtained and ought to be set aside and the proceedings dismissed.
  22. The 10th Defendant’s is supported in its application by the First and the eighth defendants. They also argue in principle that this Court is discretion to set aside the orders of the 07th March 2022 because the matter was on the summary determination list, affidavit of Philip Wariniki of the 18th March 2022. And that nearly all counsel were not present on that day 07th March 2022. And were not notified of the same. And the Supreme Court case Timothy v Marus [2014] PGSC 50; SC1403 (29 October 2014) is basis for the application because it is a judicial review proceeding and Order 16 Rule 13 (13) (1) and (2) (a) of the National Court Rules would be the basis for dismissal of the proceedings.
  23. The plaintiff has rebutted and argues that dismissal is not mandatory but discretionary. It is exercised with caution and sparingly as it is intended to end a cause of action as here. Counsel sites Larelake v Hon. Kavo [2009] PGNC 193; N3809 (13 November 2009). And extends that some very relevant law applicable given the facts here would be in the case of Ekepe v Gaupe [2004] PGNC 82; N2694 (13 October 2004) which sets out major considerations relevant here. Firstly, has there been any change in circumstances since the previous order was made, which render its continuation unnecessary and inappropriate? Secondly, what has been the relative conduct of the parties since the earlier order was made? In particular has the conduct of the party applying to have the earlier order set aside been proper. Thirdly are there previously undisclosed relevant facts which have been discovered since the interim order was made? Fourthly Has it subsequently been discovered that the order was granted on an erroneous legal basis? Fifthly, were the grounds relied on to support the setting aside or variation of the interim order, argued before the court when it granted the earlier order? Or did the party wanting to set aside or vary the earlier order have the opportunity to raise these grounds? Sixthly, was the Court misled when it issued the interim injunction? If yes, was that attributable to the conduct of the party who sought the injunction?
  24. The plaintiff relies in the rebuttal on the evidence of ;
  25. And the facts that come out from this evidence establish that the first proceeding was commenced on 20th September 2013. Leave for judicial review was granted on the 31st October 2013. And the second proceedings was commenced on the 09th December 2015. Leave for Judicial review was granted on the 26th May 2016. And on the 30th October 2017 the consolidated proceedings were dismissed for want of prosecution. From which the plaintiff now appealed to the Supreme Court. And on the 05th September 2018 the Supreme Court granted the appeal reinstating the consolidated proceedings. And on the 08th November 2018 the National Court issued directions to progress the consolidated proceedings. To which on the 22nd November 2018 the plaintiff filed and served the Review Book 7 volumes in all.
  26. Circumstances changed and so on the 07th March 2022, the National Court issued revised directional orders which effectively extended the time for compliance for filing the review Book to the 04th July 2022. In response to which the applicant as now filed a similar application, a notice of motion to dismiss the proceedings for want of compliance of the directional orders issued on the 08th November 2018 particularly for failing to file and serve the Review Book by the 22nd November 2018. This was heard in this Court presided by Justice Dingake who dismissed the notice of motion with costs on the 03rd May 2022. In so doing he gave an extempore Judgement. And on or about the 11th May 2022 the plaintiffs instructed Geroro Lawyers to prepare and lodge an appeal against the extempore Judgement. That was done on the 10th June 2022 with appropriate documentations. And on the 15th December 2022 the Supreme Court presided by Justices Yagi, Logan, and Kaumi heard and determined upholding the appeal and quashing the order of the 03rd May 2022 with Costs.
  27. Direction date was advised by the Registry by letter dated the 14th February 2023 that matter was listed for the same on the Monday 20th February 2023 at 9.30am. It was differed to the 06th March 2023 as there was no Judge available. On the 21st February 2023 at 1.20pm the proposed draft consent orders were served on all the parties, including the 10th defendant deposed to in the affidavit of Ronnie Geroro sworn and filed of the 23rd March 2023. On the 09th March 2023 it was advised that the matter was listed for directions hearing on the 20th March 2023 at 9.30am. And on the 20th March 2023 the application was specifically listed for a special fixture on the 24th March 2023 at 9.30am.
  28. Both sets of facts for and against are not in dispute that this is a long outstanding matter that has run the mile to seek out the hand of justice. It has weathered time money and resources to be able to come this far to seek out the hand of Justice in the matter argued over. The Supreme Court has set is back where it is now. And it is well to keep what the Supreme Court reminds that; “Our judicial system should never permit a plaintiff or a defendant to be ''driven from the judgment 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.” Takori v Yagari [2007] PGSC 48; SC905 (28 February 2007).
  29. In my view that is good law and is applicable here, given all the facts set out above. It is further amplified and extended in this way, “(6) The Court must consider the whole of the circumstances in which an application for dismissal on the grounds of want of prosecution is brought, in particular, events that have taken place since the application was filed. The application to dismiss should be prosecuted with due diligence. Where an appellant has not done what the Rules require in the time required but has made good its omissions before the application to dismiss is heard, the application may not be successful: Dan Kakaraya v. Michael Somare, Koiari Tarata and Francis Kaupa (2004) SC762, Los, Sawong and Cannings JJ. Which was adopted and followed in Yama v PNGBC Ltd [2008] PGSC 42; SC922 (9 July 2008). And this amplification is relevant and applicable to the facts of the present case. And I apply it in the determination of the question that has been raised, which is whether the purported consent order of the 07th March 2022 should be set aside?
  30. Firstly, the subject order is set out in full above. And the following come out from its facts as material. It has been revived by an appeal to the Supreme Court which no doubt did so because there was merit in law to air what was within. Its dismissal by the National Court has not been confirmed but that it has been given a new life by that subject order of the 07th March 2022 successfully holding its appeal. It is a court order as opposed to a consent order. It was handed out no doubt after input by the parties to the cause of action.
  31. And in the case of dismissal of the proceedings for failure of the Plaintiff to comply with term (1) (b) of the Court Orders of the 08th November 2018 and failure to prosecute the proceedings with due dispatch. That order came out 08th November 2018. It is now 24th March 2023 which is almost four years and half that it has been outstanding. And during that time the applicant 10th Defendant has not moved a finger to deal with it as is the case now. It has been left to run a life of its own. And the proceedings as a whole has been the subject of revival by the Supreme Court. In my view to go to the highest Court to come back here must be not abused. It must be very clear evidence apparent or identifiable to accede to what is prayed by the 10th defendant here. Litigants who see fit to bring their fight for Justice must not be lightly denied as is depicted by the authorities set out above. The hand of Justice must not be lightly taken away from citizens who seek it.
  32. Here I am not convinced that what is prayed is supported by the evidence relied. As has been demonstrated counsel representing has not only the deponent Beryl Kumo but other lawyers evidenced by the counsel on record here. Given one should have represented to have the subject consent order voiced in the terms they argue here. They cannot since 07th March 2022 and even then, a second motion was declared stale by the rules of Court by this court. It is in my view a second bit without the evidence supporting. And given it will not be granted in the terms prayed. And in similar the Court Orders of the 08th November 2018 will remain operative because they are incorporated into the Orders of 07th March 2022. This is clear from reading Order 1 which is in these terms, orders 7 and 8 of the 12th September 2017 remaining both in place but varied and discharged in that they do not apply to the following portions of land located outside Portion 3162 and 2123 and registered in the names of the respective persons indicated alongside each of land below. And names are set out above. In my view because the latter order is recent it will supersede the earlier order of the 08th November 2018. It is varied by the 07th March 2022 orders. Hence it has no effect and cannot be reverted to as argued by the 10th Defendant. In other words, it makes the contention and the motion of the 10th Defendant in this regard with merit and justification particularly in view of all the law set out above. The Aggregate is that both prays of the subject motion by the 10th defendant is refused and dismissed with costs.
  33. Seven Volumes of the Review Book have been filed and served particulars set out in the affidavit of service set out above of the evidence relied set out above by the Plaintiff. The Review book is dated the 12th November 2018. It is filed as of the 22nd November 20218. It is now the 24th March 2023 and revised orders after by the orders of 07th March 2022 see real attempt to bring this matter to its final hearing to see out the Justice where leave was granted in both cases as set out above. There is merit to the case and it must be heard given the dates filed up to now. Accordingly, the Motion of the 10th Defendant is dismissed with Costs. In view of the service of the Review books by the evidence set out above, trial date will be confirmed at the Directions hearing of Monday 17th April 2023 at 9.30am.
  34. Costs will follow the event against the 10th Defendant but not on indemnity as submitted by the Plaintiff. The evidence of forewarning is there but where a litigant feels that it has been caused injustice, it ought to put its case before the Court. Fore warning must be followed with the evidence to establish costs on indemnity which is not the case here by the evidence in aggregate set out above Kerr v Motor Vehicles Insurance (PNG) Trust [1978] PGNC 34; [1978] PNGLR 438 (9 November 1978). Penalties must be imposed with costs but it must be very clear by the evidence in total. That is not the case here and so costs will follow the event. The 10th Defendant to bear out in favour of the plaintiff. He pays the costs for the plaintiff who is successful here.
  35. The formal orders of the Court are;

Orders Accordingly.
__________________________________________________________________
Geroro Lawyers: Lawyer for the Plaintiff
Office of the Solicitor General: Lawyer for the State Defendants.
Wariniki Lawyers & Consultants: Lawyer for the First & Eight Defendant.
Jema Lawyers: Lawyer for the Tenth Defendant


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