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Amaiu v Worinu [2023] PGNC 36; N10133 (17 February 2023)

N10133

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 27 OF 2022

BETWEEN
CATHY AMAIU & RELATIVES & ORS RESIDING AT SECTION 72, LOT 15, BOROKO, NATIONAL CAPITAL DISTRICT
Applicant/Defendant

AND
MARK WORINU
Respondent/Plaintiff

Waigani: Linge AJ
2022: 12^th December
2023: 17^th February

PRACTICE AND PROCEDURE – application to correct errors in the minute of the order arising from accidental slip or omission – two elements, circumstances, or situation that must be satisfied in seeking orders to correct an error or slip made in the orders – Whether the Court in correcting the error or slip alter the order in a substantive way and whether the purpose and effect of the variation is to give effect to, complement or enforce the original order – in this case the correction to the orders will not alter the terms of the order in a substantive way and purposes of the changes is to give effect to or compliment the original order – application is granted

Cases Cited:

Papua New Guinean Cases
Smith v Ruma Constructions Ltd [2000] PGNC 35; N1982
Malt v Queen [2009] PGNC 15; N3577
Siune vs. Rimua (2013) N5281
Keyapaka Investments Pty Ltd v Dat [1998] PGNC 94; N1772
Rose v State [2007] PGNC 71; N3241

Overseas Cases
Rv Cripp, ex parte Muldoon & Others [1984] 2 All ER 705 at 710

Counsel:
Mr. Dupre, for the Applicant
Mr. Tai Yai, for the Respondent

BRIEF REASONS FOR RULING

17^th February, 2023

1. LINGE AJ: This is my ruling on a Notice of Motion filed on the 1 December 2022 by the plaintiff seeking to vary the previous order of the Court due to its own slip and to correct the errors by varying the terms of its previous orders and make an order for vacant possession of property.
   
2. The application is made pursuant to Order 12 Rule 8 (2) (b), and sub rule (3) (a), and Order 14 Rule 10 (1), and (2); and Order 12 Rule 1 of the National Court Rules 1983 and the inherent power of the Court under s.155 (4) of the Constitution to vary the Court Orders made in this proceeding on 28 October 2022.
   
3. The application is supported by the Affidavit of Douglas Dupre filed on the 1 December 2022 and served on Defendant’s Dotaona Lawyers on 8 December 2022. The same documents were also served personally to Cathy Amaiu on 7 December 2022.
   
4. The defendant did not file any affidavit in response, nor contest the application and I proceeded to hear the application having satisfied that the defendant and Counsel were aware of the hearing date being 12 December 2022 at 1:30pm.
   
5. The brief background is that on the 28 October 2022 this Court delivered a substantive judgment that “...the plaintiff is declared as the registered proprietor of Section 72 Allotment 21, Boroko, National Capital District, contained in State Lease Volume 40 Folio 144 (“the property”). The Court also declared the title registered in the name of Mark Worinu the plaintiff/applicant over the same property to be valid and effectual.
   
6. Subsequently on 18 November 2022 the defendant made an application to set aside the Court Order of 28 October 2022, which I refused.
   
7. On 30 November 2022 the plaintiff engaged police officers to gain vacant possession of the property and in the course of so doing came into confrontation with another faction of members of the police force who aided the defendant to resist ejectment from the property hence the application for vacant possession.
   
8. Mr. Dupre for the applicant contends that the Order of this Court dated 28 October 2022 did not specially provide for vacant possession of the property although vacant possession of the property was one of the substantive prayers for relief sought in the Originating Summons filed 19 May 2022.
   
9. He contends further that such was extensively covered in his written and oral submissions at trial seeking relief for vacant possession and even generally prayed for grant of orders in terms of the Originating Summons.
   
10. Counsel submits that there may have been a slight oversight or a clerical error in the judgment wherein His Honor did not provide reasons for the omission of the relief for vacant possession in the judgment.
    
11. He submits therefore that the Court ought to revisit its own slip and correct the errors by varying the terms of its previous orders and make an order for vacant possession of property. In the alternate, he submits leave for issuance of a Writ of Possession be granted at this instance.
    
12. Having heard the submission by Mr. Dupre for the plaintiff, I summarize my finding in the following paragraphs.
    
13. The plaintiff relies on O12 R8 (2) (b) and Rule (3) (a). I set out the specific text:
    

(2) The Court may, on terms, set aside or vary a judgement

(a) ...; or

(b) where the judgment has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction.

(3) The Court may, on terms, set aside or vary an order-

(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default and whether or not the absent party had notice of motion for the order; or

14. Courts generally had recourse to Rules (2) (b) and (3) (a) for consideration of setting aside orders. For example Rule 2(b) judgment pursuant to a direction in the absence of a party, see Smith v Ruma Constructions Ltd [2000] PGNC 35; N1982 and Rule (3) (a) any order made in absence of a party, see Malt v Queen [2009] PGNC 15; N3577.
    
15. The plaintiff here is seeking to vary the previous order of the Court due to the Court’s alleged slip, and to correct the errors by varying the terms of its previous orders.
    
16. His Honour Justice Cannings considered a similar scenario in Siune vs. Rimua (2013) N5281in which the Court originally ordered payment of “all unpaid entitlements” and the plaintiff sought the Court to vary the order which the Court granted, for the calculated amount of K 243,903.04 as falling within the ambit of the original order which referred to “all unpaid entitlements”.
    
17. The plaintiff in Siune vs Rimua case (supra) relied on Order 12 Rule 8 (4) of the Rules. His Honour aptly summarized the principles governing revisiting and varying of the terms of the Court’s previous order under Rule 8 (4) in the following:
    

“It is appropriate to vary an original order under Order 12, Rule 8 (4) and to invoke Order 12 Rule 1 of the National Court Rules and Section 155 (4) of the Constitution if the Court is not altering in a substantive way the order and if the purpose and effect of the variation is given effect to complement or enforce the original order.”

18. It can be deduced from that ruling that there are two elements, circumstances, or situation that must be satisfied, and these are:
    
    1. Where the Court is not altering the order in a substantive way; and
    2. Where the purpose and effect of the variation is to give effect to, complement or enforce the original order.
19. The plaintiff here does not cite Order 12 Rule 8 (4) of the Rules as the basis for his application. However, it is clear from his Counsel’s submission and reliance on the authority of Siune vs Rimua case (supra) that he is seeking to vary the Court’s previous order not in a substantive way and to give effect to, complement or enforce the original order.
    
20. In my consideration, the position of the plaintiff is not untenable. The Court did not give vacant possession of the property even though vacant possession of property was one of the substantive prayers for relief sought in the Originating Summons filed 19 May 2022.
    
21. Counsel extensively covered the said reliefs in his written and oral submissions during trial when he prayed for relief for vacant possession and for grant of orders in terms of the Originating Summons.
    

22. The plaintiff also prays for the relief in terms of Order 14 Rule 10 (1), and (2) of the Rules. The Rules stipulate that where the proceeding concerns a property,
1. the Court may make orders for the detention, custody or preservation of the property.
2. An order under sub rule (1) may authorize any person to enter any land or to do any other thing for the purpose of giving effect to that order.

23. This application concerns title to property transferred to the plaintiff pursuant to mortgage sale on the 17 February 2021 which the Court has declared to be valid and effectual. It is within the Court’s power to invoke this Rule to preserve the property in the hands of the plaintiff, title holder. The jurisdiction of the Court to issue injunctive, interim or permanent for preservation of property is unlimited, see for example Keyapaka Investments Pty Ltd v Dat [1998] PGNC 94; 1772.
    
24. Further, the Court is empowered under Section 155 (4) of the Constitution which gives the “...inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”
    
25. I think this is a case where the Court can properly invoke its inherent power granted by the Constitution to do justice by protecting the rights of the title holder, who, due to the perceived ambiguity of the Order of this Court on 28 October 2022 had difficulty in preserving his rights under law.
    
26. I also consider the general power of the Court under Order 12 Rule 1 of the Rules which the plaintiff has also relies and think that it can be invoked. It provides:
    

“The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgement or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgement or order in any originating process.”

27. The Court also has an inherent jurisdiction under Order 8 Rule 59 of the Rules.
    

59. It provides:

Minute of judgment or order. (20/10)

(1) Where there is a clerical mistake in a minute of a judgment or order, or an error in a minute of a judgment or order arising from an accidental slip or omission, the Court, on application by a party or of its own motion, may, at any time, correct the mistake or error.

(2) Rules 56, 57 and 58 do not apply to a correction made under Sub-rule (1)

28. This gives the Court wide powers to correct errors in the minute of the order arising from accidental slip or omission. It can be used to “vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended” see Rv Cripp, ex parte Muldoon & Others [1984] 2 All ER 705 at 710; Rose v State [2007] PGNC 71; N3241.
    
29. In consideration of all the above, I am satisfied that the plaintiff’s application has judicial merit in that it does not seek to vary the original order substantively, but it seeks to give effect to, complement or enforce the original order as prayed or sought in the Originating Summons so as to grant vacant possession of land to the plaintiff in accordance with the Court declaration of proprietary ownership and ancillary orders of the 28 October 2022.
    
30. As a reference point, I set out the full text of the relevant parts of the Order of 28 October 2022:
    
    1. A declaration that the title to property located at Section 72 Allotment 15, Boroko, National Capital District, contained in State Lease Volume 40 Folio 144 sold to the Plaintiff pursuant to mortgage sale on the 17 February 20221 is valid and effectual.
       
2. A declaration that the plaintiff is the registered proprietor to the said property transferred as of the date of entry on the 6 August 2021.
   

3. The defendant and her family members, relatives, servants, or agents be restrained from causing violence, disturbance or threats to the plaintiff and his relatives, agents, or servants.

4. A permanent injunction restraining the defendant from conducting any further dealings on the property or attempting to have the plaintiff’s title of the property cancelled or transferred through the office of the Registrar of Titles without an order of a court of competent jurisdiction.
   
31. The formal Order of the Court will be:
    
    1. The order of this Court made on the 28 October 2022 be amended or varied to include the following: -
       
       1. a) An order that the defendant and her family members and relatives occupying the property shall vacate and give vacant possession of the property within 14 days.
       2. Upon vacating the property, the defendant and her family members, relatives, agents or servants should vacate the property in good condition and repair.
       100. Failing to give vacant possession within 14 days, the members of the Royal Papua New Guinea Constabulary under the Metropolitan Command in the National Capital District shall assist the plaintiff to forcefully evict the Defendant and her family, relatives and agents out of the property.

2. Parties pay own costs

3. Time is abridged to the date of settlement which takes place forthwith.

Ordered Accordingly
__________________________________________________________________
Parker Legal: Lawyers for the Plaintiff
Bristle Lawyers: Lawyers for the Defendant