N5974

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 285 of 2008

BETWEEN:

GIRE GIRE ESTATES LTD
Plaintiff/Respondent

AND:

BARAVA LTD
First Defendant/Applicant

AND:

RAGA KAVANA as the Registrar of Titles, Department of Lands & Physical Planning
Second Defendant/Applicant

AND:

HON, PUKA TEMU as the Minister for Department of Lands & Physical Planning
Third Defendant/Applicant

Kokopo: Oli, AJ
2014: 11th November
2015: 15th May

CIVIL JURISDICTION - Practice & Procedure – Application for leave for Judicial Review – Leave granted subject to appeal before the Supreme Court – First Defendant/Applicants application to dismiss pending the entire proceedings for non-disclosure of legal cause of action, frivolous and vexatious amount to abuse of court process under Order 12 Rule 40 (1) (a) (b) & (c) of the NCR – Considered application by first defendant is misconceived as leave for Judicial Review was granted by the competent Court of jurisdictions.

CIVIL JURISDICTION - Practice & Procedure – Application for leave for Judicial Review – Leave granted subject to appeal before the Supreme Court - Considered appropriate mode would have been appeal to the Supreme Court – Considered application before the court assumed appellate jurisdiction - Considered court lacks jurisdiction – considered applicant have not exhausted the avenues through substantive hearing not through motion challenging the competency of the leave for Judicial Review – Supreme Court has remitted the matter to National Court for Judicial Review hearing - Court has a duty to protect its own process from abuse – First Defendant/Applicants application is refused.

Cases Cited:

Kekedo v. Burns Philip [1988-89] PNGLR 122
Amadio Pty Ltd v. Mt. Kare Holdings Ltd [1992] 218
Anderson Agiru v. Electoral Commission& State (2002) SC687
David Nelson v. Patrick Pruitach (2004) N2536
.Curtain Bros (PNG) Ltd v. UPNG (2005) SC788
Philip Takori v Simon Yagari (2008) SC905

Counsel:

Mr. Nelson Saroa, for the Plaintiff
Mr. E. Paisat, for the Defendants

RULING
16th May, 2015

1.	OLI, AJ.: In a Notice of Motion filed by the Plaintiff/Respondent pursuant to Order 16 Rule 3 of the National Court Rules, the Court granted leave for Judicial Review by Honourable Justice Lay (as he then was) on 4thJune 2008, and the matter was listed for hearing on 15th of August 2008 at 9:30am. The Plaintiff/Respondent sought to move the Court at Kokopo for the following orders:

1.	An Order in the nature of Certiorari to remove into this Honourable Court and to quash the decision made by the Second and Third Defendant/Applicants on 7th July 2004 and 22nd October 2004 respectively to grant State Leases Volume 16 Folio 44, Portion 307 Milinch Kokopo and Volume 16 Folio 14 Portions 101 & 102, Milinch Kokopo to Barava Limited pursuant to sections 11 and 102 of the Land Act 1996.

2.	A Declaration that the said decision of the Second and Third Defendants is null and void and of no effect.
 
3.	An Order that the First Defendant/Applicants by themselves, their servants and or agents be restrained from erecting structures or buildings and further sale of blocks of land on Volume 16, Folio 44, Portions 307, Milinch Kokopo.

4.	A Declaration that the said decisions of the Second and Third Defendant/Applicants were a denial of natural justice and that such decisions are accordingly null and void.

5.	Such further or other Orders as the Court deems appropriate.

2. The Plaintiff/Respondent also sought Orders in respect of costs occasioned by the motion.

3.	However, the history of the case reveals that this motion was never dealt with by the Court to this date. The Plaintiff/Respondent when securing the leave of the Court to go on the substantive Judicial Review hearing, the Court Order was issued in this matter and terms of the Court Order are reproduced for ease of reference hereunder:

"The Court hereby orders that:-

1.	Leave is granted for the Plaintiff to proceed with its application for judicial review.

2.	Until this matter is determined or further order the First Defendant shall not enter into or complete any agreement for Sale or Lease of any part of the Land described as portion 101, 102 and 307, Milinch Kokopo, by itself or anyone claiming under it erect or make any improvements on the land.

3.	Within 21 days of today the Plaintiff shall file its Notice of Motion pursuant to Order 16 Rule 5(2), and serve it together with the originating process and supporting affidavit, any further affidavit material on which it relies, any application to amend the grounds of the review, notice of any affidavit in any other proceedings on which it wishes to reply and this order.

4.	The Defendants shall file and serve their affidavits in reply within 21 days of service on them of the Plaintiffs documents and this order, and

5.	Within 7 days of receipt of the Defendants affidavits or expiry of time allowed for filing the same the Plaintiff shall prepare and file the review book.

6.	Upon filing of the review book the plaintiff shall list the matter for the next call of pre-trial conference and if appropriate listing for hearing. 
 
7.	The parties shall file and service extracts of argument at least 7 days before the date appointed for hearing.

BY THE COURT
IAN AUGEREA
								(Registrar)

Certification

I, June Micka, assistant Registrar of National Court Kokopo, certify that the above are true and correct orders of this court.
		
								______________________
								JUNE MICKA
								(Assistant Registrar)

4.	In the meantime the Defendant/Applicants file a Motion returnable on 16th day of July 2008 at 9.30am at Kokopo, to move the Honourable Court for Orders:

1.	That the effect and/or compliances of the Court Order, ordered the 4th of June, 2008 and entered the 30th of June, 2008 be stayed until, the Supreme Court proceedings, entitled Barava Ltd and two (2) others –v- Giregire Estate Limited, SCA No. 58 of 2008, is determined.

5.	However, the Defendant/Applicants filed the Amended Notice of Motion to amend the Order No. 2 of the Court Order of 4th June 2008. I reproduce version of the Amended Notice of Motion of Order No. 2 of Court Order of 4th June 2008 which was going to be moved on 16th day of July 2008 at 9.30 am at Kokopo as follows:

1.	That the effect and/or compliances of the Court Order, ordered the 4th of June, 2008 and entered the 30th of June, 2008 be stayed until, the Supreme Court proceedings, entitled Barava Ltd and two (2) others –v- Giregire Estate Limited, SCA No. 58 of 2008, is determined, pursuant to Order 12, Rule 1 and Order 14, Rule 9 of the National Court Rules.

6.	The amended Notice of Motion includes provisions of Order 12 Rule 1 and Order 14 Rule 9 of the National Court Rules which were omitted in the first Notice of Motion. The Order 12 Rule and Order 14 Rule 9 of the National Court Rules reads:

Order 12 Rule 1.     General relief. (40/1)
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.

Order 14 R ule 9.      Order before commencement of proceedings. (28/1)
In an urgent case, the Court may, on the application of a person who intends to commence proceedings—

(a)  grant an injunction; or

(b) make any order which the Court might make in proceedings in the nature of an application for habeas corpus ad subjiciendum; or

(c)  make orders for the custody of minors; or

(d) appoint a receiver,

 to the same extent as if the applicant had commence, the proceedings and the applications were made in the proceedings.

7.	The Defendants intention is to obtain injunctive orders to stop this proceedings from proceeding to Judicial Review trial until the matter before the Supreme Court between Barava Ltd and two (2) others –v- Giregire Estate Limited, SCA No. 58 of 2008, is finally determined. 

8.	On 27th July 2008 the above amended motion was heard and the Court issued the Court Order of which I reproduce hereunder:

The Honourable Court hereby Orders:-

1.	That the requirements for Service of this Notice of Motion and it's supporting affidavit be dispensed with,

2.	That the effect and/or compliances of the Court Order, ordered the 4th of June, 2008 and entered the 30th of June, 2008, paragraph 4 be stayed until, the Supreme Court proceedings, entitled Barava Ltd and two (2) others –v- Giregire Estate Limited, SCA No. 58 of 2008, is determined.

3.	That the Defendants/Applicants shall not file and serve their Affidavits until within 21 days after the Supreme Court has determined the Appeal in SCA No. 58 of 2008.

4.	Further, that the Defendants, in filing their Affidavits, the First Defendant shall serve copies of all the documents in the proceedings on any person claiming Title under it as the purchaser in respect of the land, the subject of this proceeding.

5.	All parties are to be served the documents in relation to this Application forthwith.

6.	Costs be in the cause.

FACTS

9.	The brief facts surrounding this matter is that the Plaintiff filed an Application for leave to apply for judicial review, to review an administrative decision made by the 2nd and 3rd Defendant/Applicant. In the Originating Summons filed on 22 May 2008, the Plaintiff/Respondent sought leave under Order 16 of the National Court Rules("the NCR") to apply for judicial review of the following acts of the Second and Third Defendant/Applicants:

(a)	The decision of the Third Defendant/Applicants to grant an Agriculture Lease to Barava Limited (a company duly incorporated under the Companies Act 1997 purporting to act for landowners of (Gire Gire Plantation) for Special Agriculture Business Lease (SABL) Purposes pursuant to Sections 11 and 102 of the Land Act 1996 on the following Portions:

(i)	Volume 16, Folio 44, Portion 307, Milinch, Kokopo; and

(ii)	Volume 16, Folio 14, Portion 101 and 102, Milinch, Kokopo (the Leases).

(b)	The decision of the Second Defendant/Respondent to issue Leases to Barava Limited on the above Portions in absence of an instrumental lease to be signed by customary landowners (of Giregire Plantation) as provided for in Sections 11 and 102 of the Land Act 1996.

10.	The application for Judicial Review was granted because the Plaintiff/Respondent proved that it had sufficient interest, locus standi and an arguable case on merit. The Leases, Volume 16, Folio 14 Portions 101 and 102 Milinch Kokopo and Volume 16, Folio 44, Portion 307, Milinch Kokopo (Giregire Plantation) were issued to the First Defendant/Applicants but it was deregistered. (See annexure (I) of Affidavit by Joseph. Buidal).

11.	The Leases were issued in breach of Sections 11 and 102 of the Land Act 1996 as it failed to satisfy the requirement of an instrumental lease signed by the customary landowners of Giregire Plantation authorising the lease of their land, Giregire Plantation. To put it simply, the customary landowners did not consent to their land being given to Barava Limited, a company purporting to represent landowners as it is not owned by the traditional landowners. (See paragraph 2 & 8 of Affidavit of Joseph Buidal).

ISSUE

12.	The pertinent issues that emanate from this latest application by the Defendant/Applicants is:

•	Whether or not the entire proceedings should be dismissed for non-disclosure of a cause of action and nature of the proceedings is frivolous and vexatious and thereby amounts to abuse of Court process.

LAW
13.	The law is well settled in this jurisdiction on the above issue under Order 12 Rule 40 (1) (a) (b) & (c) of the National Court Rules. It reads:

(1)	Where in any proceedings its appears to the Court that in relation to the proceedings or in relation to any claim for relief in the proceedings-

(a)	no reasonable cause of action is disclosed; or

(b)	the proceedings are frivolous or vexatious; or

(c)	the proceedings are an abuse of the process of the Court,

14.	The first defendant/applicants filed the above application knowing that the principal legal issue to be determined during the Judicial Review hearing is to review the administrative decision as to how the second and third defendant/applicants issued the Special Agricultural and Business Leases (SABL) to first defendant/applicant in the absence of the landowners' instrument of transfer under sections102 and 11 of the Land Act 1996. These provision reads:

102.	Grant of Special Agricultural and Business Leases.

(1)	The Minister may grant a lease for special agricultural and business purposes of land acquired under Section 11.

(2)	A special agricultural and business lease shall be granted—

(a)	to a person or persons; or

(b)	to a land group, business group or other incorporated body, to which the customary landowners have agreed that such a lease should be granted.

(3)	A statement in the instrument of lease in the approved form referred to in Section 11(2) concerning the person, land group, business group or other incorporated body to whom a special agricultural and business lease over the land shall be granted, is conclusive evidence of the identity of the person (whether natural or corporate) to whom the customary landowners agreed that the special agricultural and business lease should be granted.

(4)	A special agricultural and business lease may be granted for such period, not exceeding 99 years, as to the Minister seems proper.

(5)	Rent is not payable for a special agricultural and business lease.

(6)	Sections 49, 68 to 76 inclusive, 82, 83, 84 and 122 do not apply to or in relation to a grant of a special agricultural and business lease.

(7)	Notwithstanding anything in this Act, a special agricultural and business lease shall be effective from the date on which it is executed by the Minister shall be deemed to commence on the date on which the land subject to the lease was leased by the customary landowners to the State under Section 11.

15.	However, the Minister responsible for Department of Lands & Physical Planning is empowered under section 11 to issue lease-leaseback purposes under section 11 and it reads:-

11.	Acquisition of Customary Land for the grant of special agricultural and business lease.

(1)	The Minister may lease customary land for the purpose of granted a special agricultural and business lease of the land.

(2)	Where the Minister leases customary land under Subsection (1), an instrument of lease in the approved form, executed by or on behalf of the customary landowners, is conclusive evidence that the State has a good title to the lease and that all customary rights in the land, except those which are specifically reserved in the lease, are suspended for the period of the lease to the State.

(3)	No rent or other compensation is payable by the State for a lease of customary land under subsection (1).

16.	However, turning to this case at this juncture of the normal progressing of this matter to the stage of hearing of the Judicial Review, the Defendant/Respondents, in their respectful view, filed an 11th hour application under Order 12 Rule 40 (1) (a), (b) & (c) of the National Court Rules to dismiss the entire proceedings for non-disclosure of a cause of action and nature of the proceedings being frivolous and vexatious and thereby amounting to abuse of Court process.

17.	In the case of David Nelson v. Patrick Pruitach (2004) N2536, the Court held (at p8):

"Judicial review is all about fairness and the procedure by which the decision arrived at and not the decision itself. In the present case, the fairness of the procedure for termination is under serious challenge in the proposed grounds of review and they should proceed to a full hearing."

18.	The circumstances under which judicial review may be available are where the decision making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers see Kekedo v. Burns Philip (supra).

19.	However, the real purpose of judicial review is to ensure that the individual has been given fair treatment by the authority to which he/she has been subjected: see for e.g. in the case of Kekedo v. Burns Philip [1988-89] PNGLR 122, and Amadio Pty Ltd v. Mt. Kare Holdings Ltd [1992] 218. 

20.	In this case the Court granted leave on 4th June 2008 for judicial review which was to ensure that the Plaintiffs' rights were not unnecessarily compromised by second and third defendant/applicants administrative decisions in exercising their legal powers under sections 102 and 11 of the Land Act. The grant of leave for judicial review over the decision made by second and third defendant/applicants, do give rise to a legal cause of action at law and thereby allow the aggrieved party to be heard as of right under the Constitution and National Court Rules according to the rule of law. For first defendant/applicant to come to the same Court to plead that Plaintiff does not have a legal cause of action is absurd and ill-conceived and thereby amount to abuse of court process and the court must stand ready to protect its own due process from being abuse.

21.	I shall treat this current application, as a matter of urgency to take precedent over the judicial review hearing proper and will deal with this application first. I will deal with this application in my deliberations in the application of law to the facts section hereunder.

APPLICATION OF LAW TO THE FACTS

22.	The substantive matter in this case is that leave was granted by Court on 4th June 2008 for Judicial Review. Whilst the history of the case reveal that there was an appeal before the Supreme Court pertaining to this matter, interestingly neither of the parties in this case has informed the Court as to the outcome of the case with the Supreme Court. However, the Plaintiff Counsel in his rebuttal legal argument did make representation to the finality of the Supreme Court appeal that it was remitted back to Kokopo National Court for Plaintiff to further review and pressing of Contempt of Court charges against the named office bearers of the first defendant/applicant company for violating the Court Order of 4th June 2008.

23.	However, by Notice of Motion filed on 17 July 2014, the First Defendant/Applicant, Barava Limited seeks the following orders:

1.	The Notice of Motion and Statement of Charges dated 25/02/2009 be dismissed:

(i)	in that no reasonable cause of action is disclosed, or

(ii)	in that proceedings are frivolous or vexatious, or

(iii)	the proceedings are an abuse of the process of court, pursuant to Order 12 Rule 40 and/or Order 8 Rule 27 of the National Court Rules.

2.	That the whole of this proceedings including the contempt of Court proceeding be dismissed further with pursuant to Order 8, Rule 27 of the National Court Ruling and Order 12, Rule 1 of the National Court Rules.

3.	That the Affidavit of Joseph Buidal sworn on the 19th of May 2008 and filed on the 22nd May 2008 be struck out and/or taken off the file pursuant to Order 11 Rule 28 and Order 8 Rule 27 of the National Court Rules.

4.	That costs of and in dental to this proceedings be paid by the Respondent on a solicitor client basis.

5.	….

24.	The Defendant/Applicant rely on the Affidavit of Benjamin Murliu sworn on 17 July 2014 and the Affidavit of Fr. Augustine Tokaire filed on 17 July 2014.

Plaintiff/Applicants' Objection to the Application to Dismiss the entire Proceedings

25.	The Plaintiff/Respondent from the outset object and oppose this application and provide the following legal arguments in rebuttal to object to the application.

26.	The first Plaintiff/Respondent's legal argument is based on Jurisdiction. The First Defendant/Applicants seek to dismiss the entire proceedings including the Contempt of Court charges against the office bearers of the first defendant/applicant company and rely under provisions of Order 12 Rule 40 of the National Court Rules (Rules) which provides:

40	(1) Where in any proceedings its appears to the Court that in relation to the proceedings or in relation to any claim for relief in the proceedings- 

(a) no reasonable cause of action is disclosed; or 

(b) the proceedings are frivolous or vexatious; or 

(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismiss generally or in relation to any claim for relief in the proceedings.

(2)…,

27.	The Plaintiff/Respondent counsel submits that they fail to see the relevance of this application on the above basis as leave for judicial review was granted on 4thJune 2008 by His Honour Justice Greg Lay, as there was an arguable case on merit being established. How then can the First Defendant/Applicants claim that it is frivolous or vexatious? This response by Plaintiff's counsel is not surprising, as it is the natural reaction expected in view of the fact that the substantive judicial review hearing is still pending and the same Court is asked through the due process to review its brother's decision in disguise. To my humble view, the application is inviting the court to exercise an appellate jurisdiction role in this application. I will reject the application on this ground alone and also to protect the Court's due process from being abuse. 

28.	The Plaintiff/Respondent counsel further submits that the application is defective in that it does not comply with the jurisdictional basis. The proceedings herein are judicial review proceedings and the Rules that the Defendant is relying on is Order 8, Rule 27 of the National Court Rules. The Order 8 Rule 27 of the Rules applies to embarrassment and is under Division 1 Order 8 Rule 1 provides for the application of the Division, which covers Order 8 Rule 1 of the National Court Rules.
 
Order 8 Rule 1, relevantly states:

"This Division applies to proceedings commenced by Writ of Summons but, subject to this Rules, not to proceedings commenced by originating summons.

29.	However, Order 8 Rule 27 of the National Court Rules reads: 

Order 8 Rule 27.    Embarrassment, etc. (15/26)
(1)     Where a pleading—

(a)  discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

(c)  is otherwise an abuse of the process of the Court,

the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.

(2)     The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).

30.	The first defendant/applicant making particular reference to Order 8 Rule 27 of the National Court Rules making a huge allegation that the leave granted for judicial review has a huge potential of embarrassment to his clients or prejudice to the proceedings, in my view is ill-conceived. There is no real evidence advanced by the first defendant/applicants to show to the contrary. This legal argument runs parallel with the jurisdiction basis objection by Plaintiff. I reject this legal argument by first Defendant/Applicants.

31.	I am of the view that the proceedings herein are under Order 16 of the National Court Rules and any jurisdictional basis should come out of Order 16 as this is a special provision dealing with administrative decisions, quasi tribunals etc. However, Order 12 Rule 1 is relied upon in the next relief but it is only applicable to entering of judgment and therefore cannot be relied upon for seeking dismissal. Again, it does not fall under Order 16 of the National Court Rules. The First Defendant/Applicants application to dismiss the entire proceedings for non-disclosure of a cause of action is defective and therefore amount to abuse of Court process. I therefore reject this leg of the first defendant/applicant's argument in support of their application to dismiss the entire proceedings under Order 12 Rule 40 (1) (a) of the National Court Rules.

32.	However, it is trite law that only in clear cases the Courts can exercise its authority to summarily dismiss proceedings for example in the case of Anderson Agiru v. Electoral Commission & State (2002) SC687; Curtain Bros (PNG) Ltd v. UPNG (2005) SC788 and Philip Takori v Simon Yagari (2008) SC905. In the Agiru case (supra) Hinchliffe, Jalina, Batari JJ, held and stated that:

"The basic principles that are to be applied when the court is considering whether or not there has been an abuse of its processes … Those principles in essence are that, the court's inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity."

33.	Turning to this case, what was the intent of the Supreme Court when it made Order No.3? The Court Direction is hereby restated below.

"3.	That, proceedings OS 285 of 2008JR) is to be listed at an appropriate time before a Judge of the National Court, Kokopo, for appropriate directions to be issued, and to be done on 14 days noticed to Barava Limited and all named respondents; and,"

34.	It makes sense from the Supreme Court Direction that the simple reasoning with logic is that for the Plaintiff/Respondent, Giregire Limited to inform relevant parties that the matter will be ready for directional hearing in Kokopo National Court and this was to be done on 14 days notice to them and not within 14 days to them.

35.	It became apparent to me that in the cause of Judicial Review proceedings, the Plaintiff/Respondents Counsel also presses Contempt of Court charges against the office bearers of the first defendant/applicant company for allegedly not complying with the Court Order of 4th June 2008, respectively. 

36.	The defence main reliance on their application to dismiss the entire proceedings including the Contempt of Court charges under Order 12 Rule 40 of the National Court Rules is a very interesting legal move. The defence legal move under Order 12 Rule 40 of the National Court Rules must be seen in view of the back drop of the real procedural development with the pace and the history of the case in this proceeding since its commencement on the Civil Track in 2008. 

37.	The history of the case reveals that the matter has dragged on for a little over 7 years to this date. There are valid legal reasons for the unprecedented delays but they are justifiable one way or the other. There are two pressing matters in this case still outstanding and they are Judicial Review hearing proper and Contempt of Court Charges against the first defendant/applicants company named office bearers. I have considered the defendant/applicants submission together with the plaintiff/respondents rebuttal and I am convinced that defendant/applicants have not made out their case that plaintiff/respondent do not have a legal cause of action at law under Order 12 Rule 40 (1) (a) of the National Court Rules has no substance and therefore I have no other option but to refuse the defendant/applicant's application together with relief sought under Order 8 Rule 27 and Order 12 Rule 40 (1) (b) & (c) of the National Court Rules in their entirety. 

ORDER

39.	The Court accordingly makes the following Orders:

1.	That the application by Defendant/Applicant's application is dismissed in its entirety.

2.	That the matter returns to the registry to be listed in the next call-over for Judicial Review hearing.

3.	That the cost of this proceeding is in favour of the Plaintiff/Respondent, if not agree to be taxed.

4.	That the time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

_______________________________________________________________
Nelson Lawyers: Lawyer for the Plaintiff
Jackson Gah & Lawyers: Lawyer for the Defendant