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Tengere v Sixth Estate Ltd [2022] PGSC 151; SC2303 (28 October 2022)

SC2303

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 46 OF 2021

BETWEEN:
ROMNEY TENGERE, on his behalf and as Chairman on behalf of Morata 1, New Block Welfare & Development Association Inc.
-First Appellant-

AND:
MORATA 1 – NEW BLOCK COMMUNITY WELFARE & DEVELOPMENT ASSOCIATION INCORPORATED
-Second Appellant-

AND:
SIXTH ESTATE LIMITED
-First Respondent-

AND:
SAMSON BEJAMIN in his capacity as Secretary, Department of Lands & Physical Planning
-Second Respondent-

AND:
ALLAN ANE in his capacity as Acting Registrar of Titles
-Third Respondent-

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Fourth Respondent-

Waigani: Salika CJ, Murray J, Dowa J
2022: 25^th August and 28^th October

PRACTICE AND PROCEDURE – Supreme Court – Appeal against summary dismissal under Order 10 Rule 9A (15) NCR, Dismissal for noncompliance of directional orders and for want of prosecution – Relevant Principles – Power of court to dismiss – Discretionary –
The appellants appeal against the dismissal of the proceedings for non-compliance of orders and for want of prosecution under Order 10 Rule 9A 15 NCR. The appeal is under Order 7 Rule 7 of the Supreme Court Rules and section 14 of the Supreme Court Act. The appeal was contested by the First Respondent.

Held:

1. The Courts power to dismiss a matter summarily under Order 10 Rule 9A (15)(2) NCR is discretionary.
   
2. Noncompliance of rules of court and directional orders are serious matters that affect the interest of innocent parties and the administration of justice in a timely manner.
   
3. For an Appellate Court to substitute its own discretion for that of the trial judge or interfere with the discretionary judgment, it must be shown that the trial judge exercised his discretion upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, or that the judgment is unreasonable or plainly unjust.
   
4. Having found no obvious error in the discretionary judgment, the appeal was dismissed.
   

Cases cited:
Kuman -v- Kua (2021) SC2077
Curtain Brothers -v- UPNG (2005) SC788
Kalang Advertising Ltd v Kappusamy (2008) SC924
Korak Yasona v Casten Maibawa & Electoral Commission (1998) SC598

Overseas:

Counsel:
P Kak, for the Appellants
T Tape, for the First Respondent

DECISION

28^th October 2022

1. By the Court: This is an appeal against the decision of the National Court in proceedings WS No. 198 of 2020-Romney Tengere and others v Sixth Estate Limited & others. The proceedings were summarily dismissed under the Listing Rules 2005, (Order 10 Rule 9A (15) (2) National Court Rules) for non-compliance of the Court Orders and for want of prosecution.
   

Background Facts

2. The First Respondent is the registered holder of parcels of state leases granted from a portion of land described as Portion 2733 Morata, National Capital District.
   
3. The Appellants are the current occupants of the said land. The Appellants filed proceedings in the National Court challenging the grant of state leases to the First Respondent alleging fraud. The First Respondent filed a Defence. The Second, Third and Fourth Respondents have not participated in the proceedings.
   
4. On 14^th September 2020 directional orders were issued by consent of parties. On 6^th November 2020 the First Respondent served Notice for Discovery under the National Court Rules. On 2^nd December 2020, a second lot of directional orders were issued exparte, in the absence of the Appellants.
   
5. It is alleged the Appellants failed to give discovery and comply with the directional orders.
   
6. On 31^st March 2021, the First Respondent filed a Notice of Motion seeking dismissal of the proceedings for failure to comply with the directional orders and for want of prosecution.
   
7. On 7^th April 2021, after hearing parties, the trial judge summarily dismissed the proceedings.
   
8. Aggrieved by the decision, the Appellants appeal the decision.
   

Grounds of Appeal

9. The grounds of appeal as set out in the Notice of Appeal are:
   
   • (a) The learned Judge erred in law and fact in dismissing the proceedings for non-compliance of orders of 2^nd December 2020 by not taking into account relevant considerations including;
     
     • (i) The Appellant or their lawyer(s) were not notified by the Court Registry on or prior to 2^nd December 2020 that the matter would be heard on 2^nd December 2020 after the initial hearing on 30^th November 2020 was vacated without date;
     • (ii) The matter was heard prior to 3:30pm and contrary to the letter of advice from the lawyer of the First Respondent dated 2^nd December 2020;
     • (iii) The First Respondent’s lawyer failed to inform the court that the Appellants had been informed that the matter would be heard at 3:30pm and seek a short adjournment;
     • (iv) The Appellants and their lawyers relied on the advice of the lawyer for the First Respondent that the matter would be heard at 3:30pm and seek a short adjournment;
     • (v) The Appellants and their lawyers did not sign any consent orders for the directions, were not present at the time of the hearing and were not aware of the terms of the orders to comply with;
     • (vi) The case of Kaland Advertising Limited -v- Visvanathan Kuppusamy (2008) SC 924 involves different considerations including a breach of conditional orders and is not a complete authority for breach of orders of 2^nd December 2020.
       
   • (b) The learned Judge erred in law and fact in dismissing the proceedings by not taking into account relevant considerations including;
     
     • (i) The orders of 2^nd December 2020 were served on the Appellants’ lawyers on 6^th January 2021;
     • (ii) The Appellants or their lawyers were not aware or made aware of the terms of the orders prior to 6^th January 2021;
     • (iii) The minute of the orders of 2^nd December 2020 by his Honour’s Associate became available on 29^th December 2020;
     • (iv) Compliance of the orders of 2^nd December 2020, particularly orders 1 to 6 had already lapsed by 5^th January 2021 and therefore full compliance by the Appellants became impossible;
     • (v) The Appellants and their lawyers were not able to ascertain the terms of the orders after due search and enquiry at the registry.
       

(c) His Honour erred in law and fact in dismissing the proceedings for want of prosecution in circumstances where;

(i) Non-attendance in court on 2^nd December 2020 are covered by grounds ‘a’ and ‘b’ herein;
(ii) Non-compliance of the orders of 2^nd December 2020 are covered by grounds ‘a’ and ‘b’ herein.
(iii) His Honour erred in law and when he failed to address how it would proceed against Second, Third and Fourth Defendants (now Respondents) in the absence of any Defence before considering the application to dismiss;
(iv) His Honour failed to first address how it would proceed against the Second, Third and Fourth Defendants (now Respondents) in the absence of any defence before dealing with an application to dismiss;
(v) His Honour failed to enquire about the sufficiency of pleadings and whether an application for default judgment was necessary pursuant to Order 12, Rule 26 of the National Court Rules against the Second, Third and Fourth Defendants (now Respondents) before considering an application to dismiss.

(vi) His Honour failed to enquire about sufficiency of pleadings and whether progressing the matter without addressing the pleadings of the Second, Third and Fourth Defendants (now Appellants) would be contrary to order 8, Rules 23 and Order 10, Rules 7 of the National Court Rules.
(vii) The Plaintiffs (now Appellants) completed the pleadings and took steps to ensure the matter was ready for trial and the decision is dismiss was unreasonable and plainly adjust.

4. His Honour erred in law and fact in dismissing the proceedings in circumstances where;
   • (i) Pleadings have not closed as against the Second, Third and Fourth Defendants (now Respondents) and therefore directions hearing was not possible under Order 10, Rules 7 of the National Court Rules.
     
   • (ii) The Court failed to enquire about the sufficiency of pleadings and whether it was first necessary to deal with an application for default judgment against the Second, Third and Fourth Defendants (now Respondents) pursuant to Order 12, Rules 26 prior to dealing with the matter pursuant to Order 10, Rules 7 of the National Court Rules.
     
   • (iii) The pleadings as against the Second, Third and Fourth Defendants (now Respondents) have not closed pursuant to Order 8, Rules 23 and therefore not possible to deal with the matter under Order 10, Rules 7 of the National Court Rules without first progressing the matter pursuant to Order 12, Rules 26 of the National Court Rules.
     
   • (iv) Covid -19 proposal issues 15^th March 2021 allowed for only urgent matters to be dealt with and this matter was not urgent.”
     

Law

10. The law on applications under Order 10 Rule 9A (15)(2) of the National Court Rules is settled. Sub-Rule 15 gives the National Court a discretion to summarily determine a matter either on application by a party or on its own initiative for noncompliance of court rules or orders of court and for want of prosecution. Refer Kalang Advertising Ltd v Kappusamy (2008) SC924.
    
11. The decision of the trial judge is an exercise of discretion under Order 10 Rule 9A (15) of the National Court Rules. It is trite law that for the Appellate Court to substitute its own discretion for that of the trial judge or interfere with the discretionary judgment, it must be shown that the trial judge exercised his discretion upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, or that the judgment is unreasonable or plainly unjust. Refer: Kuman -v- Kua (2021) SC2077 and Curtain Brothers -v- UPNG (2005) SC 788.

Issues

12. The appeal grounds give rise to two issues:
    
    • (1) Whether the trial judge erred in the exercise of his discretion to summarily dismiss the proceedings for non-compliance of the directional orders (Appeal grounds (a) & (b))
    • (2) Whether the trial judge erred in the exercise of his discretion to summarily dismiss the proceedings and for want of prosecution (Appeal grounds (c) & (d))
      

Submissions

13. Mr Kak for the appellants submitted that the trial judge erred in the exercise of his discretion by failing to consider the following relevant matters:

a) The appellants were not made aware the matter was coming on 2^nd December 2020 and the appellant’s lawyers were misled as to the time of the hearing, so they could not attend the hearing.

b) The directional orders of 2^nd December 2020 were made exparte and without the consent of the Appellants. The orders were not served until 6^th January 2021, by which date, the timeline fixed for certain actions and activities to be undertaken by the appellants lapsed or expired and made it impossible for compliance.

c) The Department of Lands and Physical Planning made it difficult for them to obtain all relevant documents they required for the purposes of giving discovery and for drafting their affidavits and for complying with the directions of Court.

4. d) The proceedings were relatively fresh, and the pleadings against the 2^nd, 3^rd and 4^th Respondents were still open.
   

e) COVID 19 restrictions and protocols issued to Court users allowed for
only urgent matters to be given priority hearing and the Appellants
matter was not urgent.

14. Mr. Tape, for the First Respondent submits that the trial judge made no errors in the exercise of his discretion to dismiss the proceedings summarily, arguing that:

1. a) The appellants are squatters and have no legal standing or recognized interest in the subject property.
   
2. b) The appellants were made aware of the hearing on 2nd December 2020 but failed to attend the hearing.
   

c) The directional orders of 2nd December 2020 were an extension of

previous orders given 14^th September 2020 and the Appellants failed to comply with directional orders of both 14^th September 2020 and 2^nd December 2020. The appellants have also failed to provide a List of Documents in response to the Notice of Discovery.

Consideration of the Issues

Issue No. 1.

Did the trial judge err in the exercise of his discretion to summarily dismiss the proceedings for non-compliance of the directional orders? (Grounds (a) and (b) of the appeal)

15. The main reason for dismissal was that the appellants failed to comply with the directions of 2^nd December 2020, which appeared to be an extension of the previous directional orders given on 14^th September 2020.
    
16. The orders of 2^nd December 2020 set out below:
    

“The Court Orders that:

1. 1. The Plaintiffs shall file and serve any further Affidavit by or before 08^th December 2020.
2. 2. The Defendants shall file and serve any responding Affidavit by or before 15^th December 2020.
3. 3. The parties shall file and serve notices under the Evidence Act by 18^th of December 2020.
4. 4. The Plaintiffs shall serve draft Statement of Agreed and Disputed Facts and Legal Issues on the Defendants by 22^nd December 2020.
5. 5. The Defendants shall respond to the draft Statement of Agreed and Disputed Facts and Legal Issues by 27^th December 2020.
6. 6. The Plaintiffs shall file and serve the Statement of Agreed and Disputed Facts and

Legal Issues by 05^th of January 2021.

7. 7. The Plaintiffs shall forward a draft Index to Pleadings Book to the Defendant by 12^th January 2021.
8. 8. The Defendants shall respond to the Draft Index to Pleading Book by 19^th January

2021.

9. 9. Parties shall settle the Pleadings Book by 26^th January 2021.
10. 10. The Plaintiffs shall file and serve the Pleadings Book by 02^nd February 2021.
11. 11. Matter shall return to court on the 9^th of February 2021 at 1:30pm for status conference and to allocate a trial date.”
    
17. Except for the time period for compliance, the activities prescribed for each party to attend in those orders are a repeat of the directional orders of 14^th September 2020. Refer pages 383-385 of the Appeal Book.
    
18. The appellants argue that the orders were obtained in their absence, and they were not made aware until after 6^th January 2021.The appellants relied on the affidavits of the First Appellant Romney Tengere (see pages 513-519 & 562-598 of the Appeal Book)
    
19. The evidence shows, the matter was listed before Cannings J at 9:30 am on 2^nd December 2020. The Appellants turned up, only to find out, the trial judge was busy with Supreme Court matters in the morning. They were informed the registry would advise. On that same morning, the First Respondent’s Lawyers delivered a letter at around 9:00 am to the Appellants’ lawyers office advising that the matter was specifically fixed for 3:30 pm that afternoon. At this juncture, it is worth noting that the appellants have not offered any explanation whether they attended Court that afternoon.
    
20. The transcript of proceedings at pages 601-604 of the Appeal Book shows, the matter was heard around 1:30 pm, earlier than 3:30pm. The lawyer for the First Respondent was the only counsel who made an appearance. No one appeared for the Appellants. Counsel for the First Respondent informed the Court that the lawyers for the Appellants were advised. It is interesting to note that she (counsel for the First Respondent) did not disclose to the Court that the lawyers for the Appellants were advised to attend Court at 3:30pm, a conduct that is mischievous. She then tendered a consent draft directional order, though not endorsed by the Appellants’ lawyers. When endorsing the orders, Cannings J stated that those orders were replacing the previous orders.
    
21. The minutes of the orders were sealed on 5^th January 2021. The orders were not brought to the attention of the Appellants until after 6^th January 2021. By this time, it is clear, the timeline fixed for actions ordered in Item 1-6 lapsed and could not be complied with.
    
22. When the trial judge deliberated on the application, he was not just looking at the directional orders of 2^nd December 2020. He was also considering the failure of the appellants in complying with the previous orders of 14^th September 2020 and the failure to give discovery. The trial judge asked counsel for an explanation for the non-compliance of the orders of 14^th September and 2^nd December 2020 up to the date of the application. His Honour also enquired why the appellants could not give discovery of documents in response to the First Respondents Notice for Discovery. In response, the appellants explained that the documents and evidence they needed were not made available by the Lands Department and therefore they were unable to provide a list of documents and to prepare their affidavits in time. In respect of the orders of 2^nd December 2020, the appellants submitted that the orders were made in their absence, and they were not made aware until 6^th January 2021 by which time it became impossible to comply. His Honour considered their explanation unsatisfactory and reasoned that, firstly, with respect to the order for the filing of affidavits, the appellants did not have to fish for evidence for the purpose of compliance. If they were serious about prosecuting their claim, they could have used the court rules and process to compel the Lands Department to produce the necessary documents after so many failed attempts at getting what they wanted. They did not take that step and no explanation was given as to why they could not take that step. His Honour went on further to state that the appellants could have at least filed some affidavits but failed to do that too and again no explanation provided for that failure. Secondly, as to the order for serving a draft Statement of Agreed and Disputed Facts and Issues for endorsement by the First Respondent and the order for forwarding a draft index for the pleading book, His honour was of the view that, those were matters that could have been easily done. With respect to the statement, His Honour considered there was nothing stopping them from preparing and serving a draft statement of facts and what they would consider as issues from what they already have which can be easily changed when they have the further documents. As for the draft index, His Honour considered that, a pleading book does not require any evidence and so there should not be any issue with compliance.
    
23. Having had regard to the appellants’ submissions and the matters raised by the trial Judge, we consider firstly that the appellants can be excused for not complying with the directional orders of 2^nd December 2020 within the time frame fixed between 2^nd December 2020 and 6^th January 2021. However, we agree with the trial Judge that, that should not stop the Appellants from complying with the previous orders of 14^th September 2020 which, except for the time period for compliance that have been extended, are exactly the same as the orders of 2^nd December 2020. Having failed to comply with the orders of 14^th September, they were required to give an explanation for non-compliance, but failed to do that. We also consider that, not only did the appellants fail to give an explanation for- the non-compliance of the orders of 14^th September, but also failed to provide a reasonable explanation for the noncompliance from 6^th January 2021 when they became aware of the orders of 2^nd December 2020. The appellants had about three (3) months to the date of hearing of the application for summary dismissal to do something.
    
24. If the appellants found themselves behind in the timeline set, they could have applied for extension of time to comply. The evidence show the Appellants filed an application for extension of time to file discovery, and for setting aside the orders of 14^th September 2020 and 2^nd December 2020. However, these applications were not prosecuted for reasons unknown. It has become clear that the lawyers representing the appellants in the lower court did not appreciate the consequences of failing to follow due process under the rules of court and the need to comply with directional orders issued by the Court in a timely manner.
    
25. Noncompliance of court directions is a serious matter. Directional orders set in motion a schedule of activities geared towards speedy resolution of the dispute between the parties. Any such noncompliance of the directional orders is a setback and demonstrates a lack of respect for the Court. There is a plethora of judicial pronouncements by this Court and the National Court that litigants must not treat directional orders lightly. This is because provision is made by the Rules of Court to penalize those who fail to comply to protect the interests of the innocent parties and the interest of administration of justice. Refer Korak Yasona v Casten Maibawa & Electoral Commission (1998) SC598, Tasman Building Company v Kilroy Genia & others (2011) N4412, Rambe v Trappe, (2012) N4924, Gend V Mangre(2019) N8090, Kave v Yakasa (2014) N5692 and Lucas v Unido (2020) N8487.
    
26. Turning to the present case, the summary dismissal was an exercise of discretion. The trial court considered the explanations of the appellants but was not satisfied and proceeded to dismiss the proceedings for reasons given in his ruling. There is evidence of noncompliance of the directional orders and the trial court was permitted by Order 10 Rule 9A (15) (2) of the National Court Rules to order summary dismissal. We find nothing in the decision that shows that his Honour exercised his discretion on a wrong principle or considered irrelevant matters or failed to take into account some matter for consideration.
    
27. For these reasons we will dismiss grounds (a) and (b) of the Appeal.
    

Issue No. 2

Did the trial judge err in the exercise of his discretion to summarily dismiss the proceedings for want of prosecution? (Grounds (c) & (d))

28. Although the first respondent’s motion also sought as an alternative, a dismissal for want of prosecution, this was not argued by either party, nor was it addressed by the trial Judge. The principal ground for dismissal considered and upheld by the Trial Judge on 7^th April 2021 is the failure by the Appellants to comply with orders issued on 14^th September 2020 and 2^nd December 2020. Clearly, the issue arising from appeal grounds (c) and (d), and the matters raised now in support were not raised before the trial judge, and it is not open for the appellants to raise them in the appeal. Grounds (c) & (d) are therefore misconceived. We will dismiss them on that basis alone.

Observation

29. We observe that the Appellants raised serious compliance issues regarding land administration in respect of the UDL over the land the subject of these proceedings. We note with concern that the Department of Lands, tasked with the land administration in this country, failed to make an appearance in the proceedings to assist the Court and the parties involved in these proceedings. We hope that the issue rests with this decision and will not haunt them for their silence.

Cost

30. Cost is discretionary. The Appellants have failed in their appeal. As a matter of course, the Appellants will pay the First Respondent’s cost of the appeal.

Orders

The Court orders that:

1. The appeal is dismissed.
2. The Appellants shall pay the First Respondent’s cost to be taxed if not agreed.
   

________________________________________________________________
Peter K Pim Lawyers: Lawyers for the Appellants
Kandawalyn Lawyers: Lawyers for the First Respondent