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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS. NO. 141 OF 2008
BETWEEN:
MOROBE PROVINCIAL GOVERNMENT
Plaintiff
AND:
TROPICAL CHARTERS LIMITED
First Defendant
AND:
FRANCIS TANGA-
CHAIRMAN OF NATIONAL LAND BOARD
Second Defendant
AND:
RAKA KAVANAR
AS REGISTRAR OF LAND TITLES
Third Defendant
AND:
DR PUKA TEMU –
MINISTER FOR LANDS & PHYSICAL PLANNING
Fourth Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant
Lae: Kirriwom, J
2010: 18 February and 22 March
PRACTICE AND PROCEDURE – Pleadings - Amendment – Leave to amend pleadings – Statement in Support of judicial review – Whether amendment justified – Whether amendment crystallized controversy between parties – Whether amendment appropriate – National Court Rules, Order 8 rule 50(1) &(2) & Order 16, rule 3.
Facts
On the eve of the trial in a judicial review application where the Applicant was seeking orders in the nature of certiorari for the Court to quash the decision of the National Land Board that granted a lease over a property in Lae to the First Defendant (the Respondent herein) and the subsequence issuance of the Title Deed by the Registrar of Title on unspecified grounds, the Plaintiff sought to amend its pleadings by removing some paragraphs in a statement in support and substituting them with new ones as well as pleading completely new facts that had the effect of changing the entire character of the proceeding, etc..
Held:
(1) Application for leave to amend the pleadings in the statement is refused.
(2) Amendment would not clarify or crystallize real issues in the trial;
(3) Amendment gives rise to new issues for which leave was not sought and granted for judicial review application and as such would
further prolong hearing of the case causing undue hardships, delay and injustice to the First Defendant.
(4) Application for amendment brought in the circumstances is not made in good faith.
Detailed reasons and facts are in the judgment.
Cases cited:
Counsel:
J. Haiara, for the Applicant/Plaintiff
E. Mambei, for the First Defendant
REASONS FOR DECISION
22 March, 2010
1. KIRRIWOM J: This is an application for leave to effect substantial changes by way of amendment to a document that forms part of a cluster of documents filed in Court in an application for leave to apply for judicial review and relied upon for the judicial review application itself, namely the statement in support or statement supporting the originating summons and providing background information, the grounds for the review application and the relief sought.
2. As required under Order 16, Rule 3 of the National Court Rules, the application to the National Court under Order 16 for leave to apply for Judicial Review is made by originating summons, a statement setting out the name and description of the applicant, the relief sought and the grounds upon which that relief is sought and the application is made ex parte.
3. In this case leave had been granted and the matter is set down for substantive trial and instead of proceeding with the hearing the Plaintiff sought an adjournment which had been granted and is now asking the Court for leave to make changes in the statement in particular as to the relief sought and the grounds upon which that application is made.
RELIEFS SOUGHT IN NOTICE OF MOTION
4. Set out below are the reliefs that the plaintiff’s motion seeks:
2. Pursuant to National Court Rules Order 16, Rule 6(2) the Plaintiff be granted leave to amend the Statement in the form annexed to the Affidavit of Justin Haiara sworn 16TH February 2010 as annexure marked with letter “A”.
3. Pursuant to National Court Rules Order 1, Rule 15(1) operation and effect of the Orders 2 and 5 of His Honour Gabi, J made on 10th December 2009 be extended and the trial date set for 17th and 18th February be vacated and matter be allocated a new trial date with fourteen (14) days or any other date convenient to the Court.
4. Pursuant to Order 12, Rule 1 and section 155(4) Constitution the current Chairman of the PNG Land Board, the Chief Physical Planner, John Ofoi, the Surveyor General together with the Defendants produce to the Court through their respective Verified Affidavits filed in Court within seven (7) days from the date of these Orders the documents enumerated in the Lists of Documents filed on 2nd February 2010.
6. The Private Surveyor Pheneas Aulo file a Verified Affidavit explaining his involvement in the survey for Section 27, Allotment 43 and in particular explain whether or not he relied on a properly approved subdivision and rezoning permission from the Morobe Provincial Physical Planning Board to conduct survey of the area leading to the product survey Plan Cat No. 31/1266 and if so annex copies of the National Physical Planning or Provincial Physical Planning Board approval for rezoning and subdivision to his affidavit together with copies of the detailed survey of the land done by him.
5. I am only going to deal with the application for leave to amend the statement in support of the judicial review application which is paragraph 2. Paragraph 3 has been heard and determined by Gabi J who vacated the trial dates in February and re-fixed the matter to come before him in the April sitting of the civil court in Lae. Whatever the practical utility of this application remains questionable as I cannot see the real value of this statement in a normal pleading.
AFFIDAVIT IN SUPPORT OF MOTION
6. Be that as it may, in moving this motion, the Plaintiff relies on the affidavit of Justin Haiara sworn 16 February 2010 and affidavit of Kitan Ngomba sworn 13 February 2010. Justin Haiara’s affidavit deposes to the following:
PROPOSED AMENDMENTS
7. Annexure “A” in Justin Haiara’s affidavit is reproduced below setting out those paragraphs commencing from (b) onwards that are proposed as amendments in the reliefs sought by underlining (addition) or straight line through (deletion):
as required by Section 59(a)(iii) and (iv) fo the Physical Planning Act.
8. The Plaintiff also proposes change to the introductory paragraph of the statement that asserts itself as the registered proprietor of the land in question and this is repeated in the relief section where it removes the passage seeking a declaration as the registered proprietor of the land in question.
9. The proposed amendment does not include changes in the originating summons which is the critical document for purposes of pleading where proceedings are commenced by way of originating summons. After all there are only two modes of commencing proceedings in Court, by writ of Summons and Originating Summons as stipulated under Order 4, Rule 1 of the National Court Rules. All relief of interlocutory nature are sought by motions under Order 4, Division 5 of the Rules.
10. As the application or amendment seeks changes to only one of a number of documents filed in judicial review application whose significance is probably not as critical or high as the Originating Summons itself, the issue of competency of this application also arises where the originating summons does not correlate with the supportive document in the statement, that provides the background information to the proceeding. I shall however leave this point for another time and another case.
SUBMISSIONS
11. Counsel for the applicants submits that the proposed changes are necessary to bring out the issues clearly and concisely for the Court to resolve. The facts that are pleaded now are material facts that were unavailable earlier and therefore did not form part of the Plaintiff’s original pleading.
12. Mr. Haiara submits that the changes proposed fall well within the principles enunciated in case law and supported by the National Court Rules Order 8, Rules 50 – 53.
13. Counsel for the First Defendant/Respondent in the application strenuously opposes the application. He countered this request for amendment describing the Plaintiff’s actions as fishing for evidence when it does not have any to substantiate its claim. He submits that the Plaintiff does not have a case or facts necessary to prove its case and on the eleventh hour when the matter is fixed for trial has returned with a spurious application to further stall this proceeding.
14. Mr Mambei contends that the Plaintiff decided to amend its statement in support after reading affidavits deposed to by the First Defendant’s witnesses, namely Theo Pelgen, the Managing Director of the First Defendant sworn 20th February 2009 and Gabriel Miriye sworn 11th February 2010 and filed in support of its case. It is submitted that the Plaintiff is manipulating these facts by moving away from its earlier position where it blamed the Second Defendant and the Third Defendant for the grant of the lease to the First Defendant but does not precisely state where each of them supposedly erred, and is now shifting the blame to the Physical Planning Board for erroneously rezoning a public open area into a light industrial zone without properly complying with the legal process or procedure as stipulated in the Physical Planning Act.
15. It is submitted that what the Plaintiff is raising now has nothing to do with the First Defendant. He can take that up with the Physical Planning Board, a body responsible for town-subdivision including rezoning and there are appeal processes to be exhausted if a party is not happy with the decision of the Board. He argues that his client played no part in this except apply for the land when it went out on public tender and he was one of the four bidders. He submits that the facts deposed to in the affidavits of Theo Pelgen and Gabriel Miriye are material facts that the First Defendant relies on in support of its case. They are not facts that the Plaintiff discovered for purpose of commencing this proceeding.
16. But Mr Haiara to the contrary contends that if the court allows the proposed amendment to the statement the issues will become crystal clear for the court. I will return to the parties’ arguments on the application for amendment shortly.
Factual background
17. The parties in this case have locked horns over a piece of land along Butibam Road at the seafront of Voco Point next to Lae Yacht Club in the city of Lae which the First Defendant presently holds a registered title over it. It is described as allotment 53 section 27 Lae, Morobe Province. The property was advertised by way of public tender as light industrial zone in the National Gazette GE162 as public tender item number 207/2006 on 13 July 2006. The National Land Board met and deliberated on this after due notice of its meeting was also publicly advertised in the National Gazette No. G205 of 10 November 2006 specifying time and place of the National Land Board’s meeting as well as giving due notices to the bidders for the land. At the meeting the National Land Board deliberated and awarded the lease to the First Defendant. Subsequently the title deed was issued to the First Defendant which was published on 10 July 2007 in the National Gazette number GE162.
18. The Plaintiff is now claiming to have been unaware of this transaction, which is disputed by the First Defendant, through its Managing Director Theo Pelgen, and is pulling all stops to prevent anything happening on the land other than it remaining a public park despite steps being taken to block off public access, it being a restricted private property.
19. On 25th March 2008, the Plaintiff took this matter to court claiming that the land was a public park area and the rezoning to light industrial was illegal and the grant of title to the First Defendant is void. This action by the Plaintiff may be likened to a farmer chasing after his run-away cattle that bolted for freedom once the gates flung open while he was not paying attention. Or could this not be a case of ignorance on the part of the Plaintiff who might have approved the transaction through different officers who served the Plaintiff in its previous management regime before the current administration came in?
THE LAW
Amendment
20. Order 8, Rule 50 provides for a more liberal approach to amending any document in a proceeding. Sub-rule (1) reads:
“The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit”.
Sub-rule (2) reinforces that and says that all necessary amendments shall be made for purposes of determining the real questions raised or correcting any defect or error in any proceeding as well as of avoiding multiplicity of proceedings.
21. Most reported cases show that Courts have generally exercised their discretion in favour of granting amendment to see justice done and that no injustice is caused to the other party.
22. The general scheme of the proposed amendment apart from providing material facts, does not in any detail explain whether they are necessary to correct any error or defect in the proceeding.
23. What does become obvious from the changes proposed is that another party is already being accused and blamed for bringing about this chain-reaction of events that ultimately led to a purportedly wrong portion of land being advertised, applied for, won and leased out as light industrial zone.
24. There are two things wrong with the proposed changes that now shift the blame for what originally happened: Firstly, the party blamed is not a party to this proceeding and it raises a separate action. The second point, which flows on from the first is that because it raises a separate matter, the Plaintiff must go back and seek leave under Order 16, Rule 3 to apply for judicial review based on that ground. Leave earlier granted was based on different grounds that are now sought to be amended.
25. There is an interesting and persuasive statement of law which certainly makes much sense found in the judgment of my sister Her Honor Davani J where she was citing some passages from the Supreme Court Practice Rules 1991 Vol. 1 at p.365 in Onne Rageau –v- Chandoc Ltd & Os [2006] WS. No. 1672 of 2002 (Unnumbered Judgment Series) which reads:
‘Court will refuse an amendment that “... would change the action into one of a substantially different character which would more conveniently be subject of a fresh action.’
26. I think that point about amendment of pleadings at whatever stage of proceedings have been expressed and articulated over many times. Woods J in Heinz v Pacific Foods Ltd [1999] N1867 succinctly sets this out in his judgment:
‘The Rules of Court have always allowed parties to amend their pleadings however this does not mean that pleadings can be amended at any time and whilst some amendments can be made without leave, once matters have progressed to a certain stage of proceedings then leave must be sought as otherwise the other party could be forced to chop and change just because the first party decides to amend and change. The right and procedure for leave to amend pleadings is both to ensure that the real matter in controversy between the parties is clarified and also it may relieve a party of the consequences of mistakes made by a legal adviser. An overriding consideration in such application has always been a question of what the court considers to be just in the circumstances and basically the discretion is unqualified. A good statement of this discretion is that of Bowen LJ in Cropper v Smith [1884] UKLawRpCh 91; [1884] 26 Ch D 700 at 710:
“Now I think that it is a well established principle that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if itbe done done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a r of favour or of grace... e... It seems to me that as soon as it appears that the way in which a party has framed his case willlead to a decision of t of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if can be done without injustice, as anything else in the case is a matter of right.”
27. Woods J in the earlier case of George v Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 447 was hearing a claim for damages arising out of motor vehicle accident and there was an application to amend pleadings in the statement of claim where the statement read “was insured against liability under a third party policy of insurance” which the Plaintiff wanted to delete and replace with the phrase “the vehicle was uninsured”. The application was made after evidence was closed as it was necessary for the amended pleading to accord with the facts established in or by the evidence at the trial and the relevant statutory provisions.
28. His Honour discussed the law by examining other case authorities and allowing the amendment said:
“In the case before me now the Plaintiff quite clearly cannot succeed as he has not brought himself properly within the insured category of s.54 and he did not clearly delineate under which category he was claiming. In its Defence the Defendant clearly denied that the subject motor vehicle was insured and brought the appropriate evidence at the trial to prove that. I must add here that having been put on such notice the lawyer for the plaintiff should have been more industrious or careful in checking the evidence about registration and insurance. Unfortunately he relied too cursorily on the Police Accident report and a closer analysis of that report would have revealed to him or warned him that the vehicle may have been uninsured.
I must now consider whether the Defendant will be prejudiced if I allow this amendment. The defendant was still liable to be sued under s 54 even if the motor vehicle is uninsured which it now appears to be. So it would still have had to answer the claim and challenge the fact of the accident and the nature of the injuries and these it has done. Whilst the fact that the vehicle is uninsured may give the Defendant certain rights or actions against the driver or owner these do not affect the plaintiff. The only real prejudice suffered by the Defendant is that it brought a witness to the trial which it may not have done if the amendment had been originally pleaded and it may even have considered settling the matter and thus saved the expense of a trial. So the only prejudice to the defendant is the matter of the costs of the trial.”
29. In another earlier case of New Guinea Company Limited v Thomason [1975] PNGLR 454, an application was made after all the evidence had been closed for the Plaintiff to amend its statement of claim in order to correct a defect in the pleading. The Defendant’s counsel it seemed was aware of the defect earlier in the trial but did not bring it to the court’s attention for correction to be made before the trial continued. Defence waited to use the defect to move for the claim to be quashed and claim victory over the Plaintiff. On the other end, Counsel for the Plaintiff it seems had not picked up the defect until the close of the evidence and applied to amend the statement of claim.
30. Saldanha, J granted the application for amendment and said that it was purely formal and was for purposes of correcting a procedural slip and would cause no injustice to the Defendant. His Honour examined the origin of the principles from the old English Supreme Court Rules that applied at the time of Independence and said:
“The general principles governing the granting of leave to amend are well established as can be seen from the following authorities. In G. L. Baker Ltd. v. Medway Building Supplies Ltd.[dclxviii]8 at p. 1231 Js L.J states thes that amendments ought to be made:
“for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings”.
Bowen L.J, in Cropper v. Smith[dclxix]9 stated:
“It is a well established principle that the object of the Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights . . I know of no kind of error or mistake which, if not fraudulent or intended to over-reach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace ... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right.”
With these observations A. L. Smith L.J, expressed “emphatic agreement” in Shoe Machinery Co. v. Cultan [dclxx]10. In Tildesley v. Harper [dclxxi]11, Bramwell L.J said:
“My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder he had done some injury to his opponent which could not be compensated for by costs or otherwise.”
And in Clarapede v. Commercial Union Association[dclxxii]12 Brett M.R. said:
p>"However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it e made without injustice to the other side. There is no injo injustice if the other side can be compensated by costs."
The real matter in controversy between the parties is this: is the defendant liable on the guarantee, and if so, to what extent. It is clear from the authorities that for the purpose of deciding this issue it is only right and proper that I should allow the amendment which counsel for the plaintiff seeks.
Whether leave to amend should be granted or not is a matter of discretion for the Court. Like all judicial discretions it must be judicially exercised, and, for this purpose it is relevant to consider the conduct of the parties. Counsel for the plaintiff has confessed quite frankly that neither he nor the solicitors instructing him were aware of the defect until ...... pointed it out. When exactly the other side became aware is not clear but there appears to be some force in .......... contention that ......... waited in ambush until the last minute. Had the defect been pointed out earlier, as, in my opinion it ought to have been, it could have been amended in good time. The amendment sought is purely formal and is for the purpose of correcting a procedural slip. It will cause no injustice to the defendant."
31. My brother Justice Gavara-Nanu after reviewing the authorities in The Papua Club Inc v Nusaum Holdings Ltd & Ors (2002) N2273 summarised the principles this way:
"The following principles appear to emerge from the authorities cited which should guide the Court, when considering leave for a party to any proceedings to amend a pleading, even at the late stage of the proceedings:-
(a) Where the amendment is to enable the Court to determine the real question in controversy between the parties, or
(b) Where the amendment is to correct any defect or error in the proceedings, and
(c) That such amendment will not cause real prejudice or injustice to other party, and
(d) That the application for such amendment is not made mala fide, and
(e) That the other party can be fairly compensated with costs for such amendment."
WHAT IS THE REAL CONTROVERSY?
32. In this case the fundamental question that keeps popping in and out is ‘what is the real controversy here?’ Is it the grant of lease itself over Section 27, Allotment 53 Butibam Road, Lae to the First Defendant that is illegal? If so, why? Or is it the decision of the Land Board that is illegal? If so, why? Or is it the issuance of title deed to the First Defendant by the Third Defendant that is illegal or wrong? If so, why? Or is it the zoning of the land in question into light industrial zone that is illegal? If so, why? I emphasize the world illegal because there is no allegation of fraud against anyone except concerns of non-compliance with statutory requirements. How far then would this take the Plaintiff to say if it was just a case of oversight on the part of the officers involved in the work?
33. I don’t know whether amending the pleadings as per the draft statement will help improve the Plaintiff’s case or crystallize the real issues to be addressed. From this constant fluctuation of the circumstances of this case, I do not know what the real controversy is to be addressed. It could be that the only controversy is that the Plaintiff does not like the land in question being taken up for development as a light industrial zone other than allowing it to remain as a public park or reserve?
34. Plaintiff is a large employer with officers employed in different sections and divisions with different responsibilities. Many times workers in different officers are moved around and others leave their employment and new ones are recruited to replace those who leave or to take up new and specific jobs. One of those officers who worked for the Plaintiff for many years is Billy Lawrence or Lawrence Billy.
35. Lawrence Billy or Billy Lawrence was a very senior officer and adviser on land matters to the Plaintiff and is or was popular in the organization as is or was the then Chief Executive Officer of Department of Morobe, Manasupe Zurenuoc. I will take judicial notice of this fact because of my constant dealing with them in my capacity as judge administrator and responsible for court administration which included discussion on land matters relative to proposed new Lae court complex.
36. There is very strong evidence according to the documents filed by the Defendant, particularly the affidavit of Theo Pelgen, Managing Director of the First Defendant company, sworn 20th February 2009 showing that there was nothing sinister or under-hand in the way the First Defendant acquired this land. Billy Lawrence was well aware of the transaction and even supported the First Defendant’s submission to the Land Board to grant the lease to the First Defendant for the development and the type of development that even Billy Lawrence knew was to be constructed on the land and its shoreline or sea-front.
37. In the face of this evidence, I am left to wonder whether the Plaintiff is really sincere about the extent of its inquisition for evidence by seeking orders for certain persons to appear and produce documents when Billy Lawrence could save all the trouble. Everybody in the Plaintiff’s employ would certainly know Billy Lawrence and all it requires is for Billy Lawrence to assist the Plaintiff in its quest for information. It might be a case of ignorance as is often the case when the simple answer could be that the decision was made by the previous management of which its’ officers presently on deck have not been briefed about and are not aware of it.
38. In this absence of any affidavit in reply from the Plaintiff to this strong and compelling evidence to the contrary before the Court, what are the real issues to be tried in this proceeding that the proposed amendment is seeking to clarify? Or is it claimed that Billy Lawrence was bribed to give his support or facilitate this transaction? This is not even pleaded. In fact pleadings do not show any allegations of fraud. The proposed amendments do not even assert anything of that nature.
39. The proposed amendments are assuming based on hearsay evidence of Kitan Ngomba that the subject land in dispute is a public park land once known as ‘Stewart Park’ and for all intents and purposes was always a park land so therefore its re-zoning to light industrial land must be deemed illegal. This is an outrageous proposition for the Plaintiff to lean on in this case because there is evidence including historical photographs showing the contrary and clearly demonstrating how little Kitan Ngomba knows about the area before the modern developments took place such as the new Lae Yacht Club. Only those who have lived in Lae over the last 40 – 50 years would know the surrounding environment and landscape of the area well to depose to this fact and Kitan Ngomba has not qualified himself to be such a witness to have personal knowledge of this fact.
CLOSER AND CRITICAL EXAMINATION OF THE PROPOSED CHANGES
40. The first proposed amendment that is sought wants to delete the passage in the introductory part of the statement that identifies the Plaintiff as the registered proprietor of the land. The implication here is that the Plaintiff no longer wants to assert itself as the registered proprietor having sited the First Defendant’s copy of the title deed over the property. The second relief sought is to delete paragraph (c) in the statement that seeks a declaration that it is the registered proprietor of the subject land in dispute. The implication here is that the Plaintiff no longer wishes to claim ownership of the land in question which promptly drew the First Defendant’s contention that the effect of these deletions could also remove the Plaintiff as a party with sufficient interest and standing to bring this proceeding.
41. Then I examine the next lots of changes proposed where the Plaintiff seeks to add a number of paragraphs numbering up to...to the statement and I will examine each in turn:
"A declaratory order that the Light Industrial Lease granted to the First Defendant was done in breach of Section 67, Land Act 1996 and therefore null and void."
42. The Plaintiff in his original pleading is seeking an order in the nature of certiorari to move into the National Court the decision of the National Land Board the Second Defendant herein that approved the grant of the land in section 27 allotment 53 to be quashed as being illegal, invalid and void. In the above paragraph, the Plaintiff is now seeking to invalidate the grant on the basis as it was done in breach of section 67 of the Land Act. It does not say how the First Defendant breached the law under the Land Act. This statement or pleading is too general and meaningless. Statements filed in support of any claim or proceedings only plead facts, not law or statutory provisions. As it is pleaded, the defendants cannot even answer that statement.
43. The next proposed amendment reads:
"A declaratory Order that the Secretary for the Department of Lands erred in law in advertising the land Section 27, Allotment 53 for development as Light Industrial Lease pursuant to Section 65 of the Land Act 1996 when the land was not rezoned and properly available for development contrary to Section 67 of the Land Act 1996."
44. In this paragraph, the Plaintiff is taking issue with the advertisement of the subject land and blames the Secretary for Lands for having made that terrible mistake where it claims that the land in question was not zoned as light industrial area was put on public tender for development purposes. Two things are not right in this paragraph. Firstly, if the Secretary for Lands is at fault, he is not even a party as a Defendant to this action. Secondly, this is referring to a time that had already preceded the grant of lease by the Second Defendant, which has no relevance to the current proceeding. This is raising a new issue for which the relevant party named is not involved in the proceeding and no application was made to include him as a party.
45. The next proposed amendment reads:
"A declaratory Order that Morobe Provincial Physical Planning Board had not approved any rezoning or planning permission to rezone the area described as Section 27, Allotment 53 from open space to Light Industrial, therefore the rezoning of the said land as Light Industrial is null and void."
46. This paragraph is also bringing up a new issue about rezoning of the land. When the Plaintiff was first granted leave to apply for judicial review of the National Land Board decision, it was based on the assertion that there was something wrong with the decision of the Board. The jurisdiction of the National Land Board begins when issues pertaining to subdivision and zoning have been completed and the land is advertised through public tender and interested parties bid for the land. Once the tenders are received by the Land Board, the Board convenes and makes the decision.
47. This is a new issue arising in a different cause of action that is probably already well behind in time. It is trying to resurrect a cause of action that missed the ship when it came should have been raised. In any event, for argument sake, even if it is raised now and need to be progressed to the next stage, under the National Physical Planning Act 1987 which establishes both the National and Provincial Physical Planning Boards, the Act clearly defines set procedures for matters within the Act’s jurisdiction including appeal procedure to an Appeal tribunal established under that Act. That process cannot be circumvented as the Plaintiff is attempting in this case by way of amendment.
48. Next reads:
"A declaratory Order that Survey Plan Cat No. 31/1266 was done by a private surveyor without any prior approval of the preliminary development plan and rezoning application to convert the area Section 27, Allotment 53, from open space to Light Industrial use and as such the Cat Plan No. 31/1266 is null and void and be struck out and removed from the Lands Department file."
49. This is knit-picking certain facts deposed to in the affidavit of the First Defendant’s case as evidence to be relied on in the trial in this last minute effort by the Plaintiff to prolong the delay in the hearing of the matter by taking issue with this fact when all that is required is to contradict that evidence by filing an affidavit in reply opposing credibility of that survey plan. In any event, that survey plan is not the subject of this proceeding. The time to scrutinize that plan had already gone past the Plaintiff when it slept on its laurels.
50. And another:
"A declaratory Order that the approving authority for the planning permission or the area in question is the Morobe Physical Planning Board."
51. That has no relevance to the current proceeding. It is relevant to an entirely new proceeding which is already water under the bridge.
52. And another:
"A declaratory Order that the following persons were denied the opportunity to comment and object to a development plan to rezone the area from open space to Light Industrial.
i. MPPPB – (Morobe Provincial Physical Planning Board)
ii. Morobe Provincial Government
as required by Section 59(a)(iii) and (iv) fo the Physical Planning Act."
53. This is presumptuous and speculative as it is far too late to try and resurrect a case that evaded the Plaintiff when it should have addressed it at the time. It is one thing for the Plaintiff to plead all these matters into the statement, substantiating them by credible and reliable evidence is another. In any event, all these new facts sough to be added or pleaded bring completely new scenario to the case that make the parties named in this proceeding disappear in the background while the National or Morobe Provincial Physical Planning Board are now being propelled into the front seat. That seems to be the trust of this proposed amendment.
54. In the end the critical question keeps coming up, what has all these got to do with the First Defendant, an innocent applicant who responded to an advertisement for a block of land specifically stated to be for light industrial development and was granted the title and who has no knowledge about the defect in this title until now? Is the Plaintiff admitting that it availed land for leasing that was not legally in order to be leased out?
55. And another:
"Pursuant to Section 81(9) Land Act a State Lease is deemed to commence on the date of name of successful applicant is published in the National Gazette pursuant to Section 74 Land Act. The Notice of Grant to First Defendant was not published in the National Gazette on 4th May 2007 so the grant to First Defendant had not yet commenced."
56. This paragraph means nothing as it is. It is simply a self serving statement with no practical value or utility to be included in the amendment.
57. And the final one reads:
"An order in the nature of a permanent injunction prohibiting the First, Second, Third and Fourth Defendants and Department of Lands and Physical Planning, defendants its agents, servants and employees from interfering or contemplating any further developments of the Land described as Volume 14, Folio 61, Allotment 53, Section 27, Lae inconsistent with the zoning."
58. The only conclusion that can be derived for this paragraph is that the Plaintiff must have filed its proceeding in a rush that it even sought permanent injunction against all the named parties including the Lands and Physical Planning Department and or their servants, agents and employees from interfering or contemplating any further development on the disputed land. Of course Chairman of National Land Board has already done his job and there is no need for him to stick around to see that the successful bidder develops the land, similarly the Registrar of Title had done his work and issued the title and it is not his job to hold the cane and wave it at the successful bidder to develop the land in accordance with its lease conditions and likewise the State and the Department of Lands and Physical Planning. This is incoherent and meaningless statement that the plaintiff now seeks to amend to give it meaning in the guise of this wholesale amendment by tying it with the issue of zoning or re-zoning that is already now water under the bridge.
THE LEGAL TESTS
59. I now ask myself the critical questions that the law requires be asked:
Question 1: Will the issues be crystallized by the amendments?
60. What issues will remain to be crystallized if the Plaintiff amends the statement in that wholesale manner? The Plaintiff is already abandoning his previous position and in that scenario, I see no settled issues remaining to be crystallized; the converse is precisely what will happen. New issues emerge and case becomes complex and convoluted and could even lead to a mistrial. I will answer this question in the negative.
Question 2: Will the amendment correct any defect or error in the proceeding?
61. The proposed amendments are not correcting any defects or errors, they are changing the entire landscape of the case where initially the Plaintiff went out to prove that all the named Defendants had erroneously granted the lease to the First Defendant and had the title registered in it is name without following proper procedures by involving officers of the Plaintiff but when evidence from the First Defendant reached the court file which to a large extent contradicted the Plaintiff’s position in a substantial way, it has now changed its position by blaming some other people for causing this to happen. But whoever is at fault has nothing to do with the First Defendant who has a clear title to the land in question. It is not alleged that it obtained this land or title to this land by fraud.
62. What is the error or defect in the pleading here? There is no defect or error that needs correction or updating. It seems that a whole new action that was to have been instigated before while subdivision or zoning of the land in question was undertaken is somewhat belatedly being resurrected disguised as amendment to this action which cannot be allowed. Plaintiff must file a separate proceeding and go back seek leave to do that.
Question 3: Will the amendment cause real prejudice or injustice to the other party?
63. The First Defendant has been waiting for this case to end since it started in March 2008. Its principal had deposed to an affidavit expressing his desire to develop the land in question in accordance with the purpose for which his company applied for the land and was given the lease. Since the grant of the lease the company has been paying annual lease rentals to Lands Department in the sum of K7,000 or thereabouts. The amendment will further delay the proceeding which means all parties go back to the drawing board and the First Defendant will continue to suffer losses just paying annual land rentals and lawyer’s costs. The company could even be penalized and face forfeiture of the lease for not complying with the lease conditions.
64. In my view any or further amendments will result in further prolonged delay which is it seems is what the Plaintiff wants. Grave injustice will result in this protracted litigation where the First Defendant must fulfill the conditions of the lease as well as pay the annual land rentals to the Lands Department which an order for costs under the Rules will not provide adequately remedy.
Question 4: Is the amendment made mala fide or in good faith?
65. I do not believe that this proposed amendment is sought in good faith. If so, it has been a year ago that Theo Pelgen, the Managing Director of the First Defendant had deposed to and filed his affidavit and the Plaintiff and its lawyers had one year to investigate his assertions in the affidavit by finding out from Billy Lawrence the veracity of Theo Pelgen’s claims. If they did, there would have been an affidavit filed to this effect. They have slept all this time and rather than speeding up the trial now, they want to further delay it by vacating the trial dates already given to them, second time in a row. There must be finality to this whole proceeding and the Plaintiff has the onus of prosecuting his claim with due diligence or face the consequences of dismissal for want of prosecution. I must agree with the First Defendant’s counsel that this is going on a fishing expedition.
CONCLUSION
66. By way of summary, I say that this wholesale amendment sought to the statement filed in support of the judicial review application must be declined for these reasons:
67. In the circumstances, I dismiss the application for amendment of the statement in support and direct that the matter go to trial without further delay.
COSTS
68. I award costs for this motion to the First Defendant to be paid by the Plaintiff.
Steeles Lawyers: Lawyers for the Plaintiff
Manu & Associates: Lawyers for the First Defendant
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