Mata Holdings Ltd v Adrias [2016] PGNC 45; N6221 (29 February 2016)

N6221

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 522 OF 2010

BETWEEN:

MATA HOLDINGS LIMITED
Plaintiff

AND:

JOHN ADRIAS, Secretary of Department of Commerce & Industry
First Defendant

AND:

JOSEPH LELANG, Secretary of Department of National Planning
Second Defendant

AND:

GABRIEL YER, Secretary of Department of Finance
Third Defendant

AND:

SIMON TOSALI, Secretary of Department of Treasury
Fourth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

OS NO. 523 OF 2010

BETWEEN:

HOMA HOLDINGS LIMITED
Plaintiff

AND:

JOHN ADRIAS, Secretary of Department of Commerce & Industry
First Defendant

AND:

JOSEPH LELANG, Secretary of Department of National Planning
Second Defendant

AND:

GABRIEL YER, Secretary of Department of Finance
Third Defendant

AND:

SIMON TOSALI, Secretary of Department of Treasury
Fourth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Davani J
2013: 13th July
2016: 29th February

PRACTICE AND PROCEDURE – application to dismiss proceedings for want of prosecution - no action on the court file or that the plaintiff had not taken any constructive steps to pursue the proceedings for a period between 1 year 5 months to 1 year 10 months - onus on Plaintiffs and their lawyer to satisfactorily explain the delay - reasons given by plaintiffs' lawyer would not warrant the dismissal of an application to dismiss proceedings - no satisfactory explanation for the delay by plaintiffs – orders to dismiss proceedings granted - Order 12 Rule 40 (a) (b) (c) of the National Court Rules

Cases Cited:

Papua New Guinea Cases

Ahmadiya Muslim Mission v BSP Ltd (2005) N2845;
Credit Corporation Ltd v Tabua [1990] PNGLR166.
Golpak v Alongkarea Kali & Ors [1993] PNGLR 8;
Joe Jeffery v Roy Agal (2006) App No 42 of 2003, Davani J
John Anopari v MVIL Ltd (2009) N3697,
Louis Lucien Siu v Wasime Land Group Incorporated (2011) SC 1107
Markscal Ltd v MRDC (1999) N1807;
Michael Yoma v WAMP NGA Enterprises Ltd (2009) N3644),

Munum Investments v Paul Ponda & Ors [1995] PNGLR 1
Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133
Ronnie Wabia v BP Exploration Operating Co. Ltd & 2 Ors [1998] PNGLR 8.

Overseas Cases

Allen v Sir Alfred McAlphine & Sons Lt [1986] 2QB 229
Birkett v James [1978] AC 297.
Witten v Lombard Australia Ltd (1968) 88 WN (Prtl) (NSW) 405 at 411.

Counsel:

Mr M. Nasil, for the Plaintiffs/Respondents in both Proceedings
Mr R.Inua, for the Fifth Defendants/applicants in both Proceedings
Nil Representation, for First, Second, Third and Fourth Defendants

DECISION

29th February, 2016

1. DAVANI .J: OS 522 of 2010, OS 523 of 2010 together with OS 12 of 2011 came before me in the form of motions. In OS 12 of 2011, Mr Wariniki appeared for the Plaintiff.

2. The plaintiffs filed these proceedings, Originating Summons no. 522 of 2010 and 523 of 2010 on 15th September 2010 ('OS') seeking declaratory orders that they are the legitimate customary land owners of certain parcels of land allocated within the Hides Gas Petroleum Development License 1 project area (PDL1) in the Southern Highlands Province. The Originating Summons pleads that because they ("the plaintiffs") are the legitimate landowners, that they are entitled to Business Development Grants (BDGs) to be allocated by the State for PDL1.
3. In OS 12 of 2011, Mr Wariniki and Mr Inua informed the court that the Plaintiff had agreed to discontinue the proceedings. The draft Notice of Discontinuance, signed by both parties, was handed up in court, which I duly endorsed.

4. In OS 522 of 2010, and OS 523 of 2010, Mr Nasil appears for the plaintiffs. Mr Inua of Makap Lawyers appears for the Defendants/Applicants ("Applicants")

OS 522 of 2010

5. Before the Court is Notice of Motion filed by Makap Lawyers for the Applicants, on 26th July, 2012. This motion seeks the following orders;

1. That the proceedings be dismissed for want of prosecution;

2. That pursuant to Order 12 Rule 40 (a) (b) (c) of the National Court Rules ("NCR"), the proceedings be dismissed for not disclosing a cause of action, that they are frivolous and vexatious and are an abuse of the process of this court.

Application to dismiss for want of Prosecution

6. In his affidavit sworn on the 16th of July, 2012 and filed on 26th of July, 2012, Riben Inua, lawyer, deposes to having conducted a search of the court file at the National Court Registry, Waigani, on 4th July, 2012 and ascertained from this search that certain court documents had been filed, totaling 16 altogether.

7. At paragraphs D to G of his affidavit, Mr Inua deposes to the following:

"D. According to the file endorsements, there were four times this matter was mentioned in Court. First on the 24th September 2010, before Salika DCJ and was adjourned to 4th October, 2010. It was not mentioned on that date but was mentioned on 11th October, 2010 before Gavara Nanu J and adjourned to 18th October, 2010 to allow the defendants to serve documents.

E. on 18th October 2010, matter was adjourned to 1st November, 2011. I could not ascertain what happened on 1st November 2010 as there are no records on this date, but the matter was again mentioned on the 18th November 2010, where Sakora J. issued orders for the joinder Rendle Rimua as a defendant in this matter.

F. Those were the only endorsements I ascertained on this file.

G. As a result, on the 30th of March 2012, we caused a letter to the plaintiffs lawyers forewarning them that we would make an application of this nature should they not prosecute the matter failing which we will make an application of this nature.

Annexed hereto and marked with a letter "A" is a true copy of that letter"

8. Having established that, Mr Inua then sent a letter to the plaintiff's lawyers warning them of their lack of action, failing which the Applicants lawyers will make an application to dismiss the proceedings for want of prosecution.

9. The last activity on this file, according to this search, was on the 15th November, 2010 when the Court issued orders to join Rendle Rimua as a defendant to the proceedings. A total of 1 year 10 months lapsed from that date, to the time of the filing of the Application.

10. In response to those submissions, Mr Nasil referred the Court to two affidavits. The affidavit of Henry Apo, sworn and filed on 15th November, 2010 and his own affidavit, sworn and filed on 6th August, 2012.

11. In his affidavit, Mr Nasil deposed to a blanket referral to mediation of all LNG related matters, such order having been made by Kandakasi J on 2nd March, 2011. This decision was appealed to the Supreme Court on 30th March, 2011 and on 19th April, 2011; the Supreme Court held that this was not a mediation order.

12. According to Mr Nasil's affidavit, no steps were taken during the period, 2012. He deposes that this was because he was awaiting advice from Justice Kandakasi in December in relation to the further progress of this matter. However, I see also that there is no evidence before me of the follow ups, if any, by Mr Nasil, to the Registry or the ADR sub registry, following up on the progress of the mediation.

13. The evidence is also that after Makap Lawyers issued letters to Nasil Lawyers dated 6th of March, 2012 and 23rd March, 2012, giving notice of the application to dismiss proceedings, and after Makap Lawyers filed the motion to dismiss proceedings (25th April, 2012), that Nasil Lawyers then requested the Registrar (letter of 24th May, 2012) to ascertain the status of the mediation and to have the matter listed for directions hearing (letter of 2nd July, 2012).

14. In fact, by Greg Manda Lawyers letter to Mr Nasil dated 25th April, 2012, it stated in no uncertain terms that if the plaintiff rests on his laurels, that he would suffer the consequences. The letter reads;

"We refer to the above and note that the matters have been left outstanding since the last court appearance before Kandakasi J on 1st December, 2011 together with the other PNG LNG related cases.

Could you please take steps to have the matter relisted so that parties can inform the Court of the status? (my emphasis)

15. This does not take into account the fact that the last action on the file in relation to court appearances was when Rendell Rimua was joined as a defendant on 15th November, 2010.

16. It also does not take into account the fact that since the Supreme Court decision of 19th April, 2011, that the Plaintiff did not take any steps to pursue the matter in court until they received the forewarning letter from Makap Lawyers. And 13 months passed where no action was taken.

17. It pays for a plaintiff to understand that after he or she files proceedings in Court that they must be in constant contact with the Defendant. There is no point in taking steps after receipt of defendants' lawyers' letter advising that he would file application to dismiss for want of prosecution. In my view, that is a very late reaction which will not serve any purpose. If the defendant does carry out the threat to dismiss, he is quite entitled to do so. A plaintiff cannot then ask for a reprieve if the Defendant is set on pursuing the anticipated remedy.

OS NO. 523 OF 2010

18. The application before me by the Applicant is to dismiss the proceeding for want of prosecution under Order 4 Rule 36 and for reasons under Order 12 Rule 40 (a) (b) (c) of the National Court Rules, pursuant to Notice of Motion filed 25th April, 2012 by Makap Lawyers.

19. The first order of the motion dealing with leave to proceed with the application (leave to opt out of a purported mediation order) was already addressed by this Court on the 29th June, 2012 where I ruled that there was in fact no order for mediation made in this matter and granted leave to the Fifth Defendant to proceed with its current application. There is a written decision of this ruling on the court file.

20. In the circumstances of this case, the Applicant submits the delay of more than 1 year 5 months since the last activity on the 15th November 2012 when this Court ordered that Rendle Rimua be joined as a defendant, is undue delay and inexcusable.

21. In support of his submission, Mr Inua relies on his affidavit sworn on 16th July, 2012 and filed on 26th July, 2012. He deposes therein at paragraph C, to the 16 documents that were filed by both parties, and refers more particularly, to paragraph C1, which is the affidavit of service of Mark Nasil, filed on 30th September, 2010, and which is the last document filed by the plaintiff's lawyers. Mr Inua's submissions that the last action on the file, an Order to Join of 18th November, 2010, and the fact that no action was taken for nearly 1 year 5 months, is inexcusable and inordinate delay. Mr Inua submits that if the proceedings are not dismissed, that the defendant's will continue to suffer prejudice.

22. Mr Inua submits further that the Defendant State is suffering the prejudice of continuing to appear and defend itself, committing its time and money when the plaintiffs are not serious and will continue to do so if the matter is not dismissed.

23. Additionally, although Mr Nasil submits that a consent order was the reason for the delay, I see from perusal of the court files that no consent was given by the defendants including the State as claimed by the plaintiffs deposed to in the affidavit of Mark Nasil sworn and filed 8th May, 2012. As deposed to in Riben Inua's affidavit in response sworn and filed 10th May 2012, parties agreed initially to settle and the orders were handed up to the Court for endorsement but the court refused it outright, advising parties get prepare for hearing (trial) on a case by case basis. Therefore, that purported consent order is not an order which can be relied on. It is simply a document entitled Consent Order but without the Court's endorsement and therefore it is not an order that the plaintiffs or the court can rely on.

Principles on Want of Prosecution

24. Order 4 Rule 36 (1) of the National Court Rules states that where a plaintiff makes default in complying with any orders or directions as to the conduct of the proceedings, or does not prosecute the proceeding with due dispatch, the Court may stay or dismiss the proceeding.

25. The power of the Court to dismiss proceedings for want of prosecution should be exercised only where the plaintiff's default has been intentional and contumelious or where there has been inordinate and inexcusable delay on his or his lawyer's part giving rise to a substantial risk that a fair trial will not be possible or will seriously prejudice the defendant. See Allen v Sir Alfred McAlphine & Sons Lt [1986] 2QB 229 and Birkett v James [1978] AC 297.

26. Where there has been a long delay in bringing the proceedings to trial, a balance must be struck as between the plaintiff and the defendant and in the end, the Court must decide whether or not, in the balance, justice demands that proceedings should be dismissed. See Witten v Lombard Australia Ltd (1968) 88 WN (Prtl) (NSW) 405 at 411.

27. Both the above precepts were adopted and applied in Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133 Woods J, which has been applied by this Court and the Supreme Court in many subsequent cases and it is the law.

28. There are many cases in this jurisdiction in which this Court has dismissed the proceedings for want of prosecution where the delay has been for as long as 8 years Michael Yoma v WAMP NGA Enterprises Ltd (2009) N3644), 5 years (John Anopari v MVIL Ltd (2009) N3697, more than one year (Ahmadiya Muslim Mission v BSP Ltd (2005) N2845; Markscal Ltd v MRDC (1999) N1807; Joe Jeffery v Roy Agal (2006) App No 42 of 2003, Davani J. The last case concerned an appeal from the District Court which was not prosecuted by the appellant resulting in 6 years wasted without any exceptional reasons advanced after filing the appeal. The principles enunciated however, were the same as in the foregoing cases above.

29. Even if the delay is by months, it can constitute undue delay if no satisfactory explanation is offered given the particular circumstances of the case: Markscal Ltd (supra); Credit Corporation Ltd v Tabua ]1990] PNGLR166. The latter case also held that a delay of 4 months by the appellant in failing to prosecute his appeal after filing the Notice of Appeal and Recognizance of Appeal in the National Court, is undue delay.

30. However, in all these and other similar cases, 3 main elements emerge which the Court will have to consider when deciding whether or not to grant orders to dismiss the proceedings for want of proceeding. First, each case has to be assessed and decided on its own facts and circumstances. Often it is phrased as, "what constitutes undue delay depends on the circumstances of each case". Second, the delay has to be unreasonable, or inexcusable. Third, the defendant has to suffer some prejudice as a result of the delay.

31. In want of prosecution cases, the test to apply in order to establish such a case is, the applicant (for dismissing the case for want of prosecution) has to make out a prima facie case for dismissal of the proceeding for undue delay and once this is established, the onus shifts to the respondent to satisfactorily explain the delay.

Analysis of submissions on application to dismiss for want of prosecution

32. In this case, the Applicant has satisfactorily demonstrated prima facie, that there was no action on the court file or that the plaintiff had not taken any constructive steps to pursue the proceedings for a period between 1 year 5 months to 1 year 10 months.

33. And the onus has now shifted to the Plaintiffs and their lawyer, to satisfactorily explain the delay, I have seen that the general submission by Mr Nasil is that after he received the letter from Makap Lawyers giving notice that it would file application to dismiss proceedings, that only then did Nasil Lawyers, send letters to the Registrar, requesting that the matter be listed for hearing.

34. In my view, that is a reaction to the threatened application to dismiss. A plaintiff cannot sit on his laurels, then at the eleventh hour, react to a threat that may see the early termination of his proceedings.

35. I find the reasons given by Mr Nasil as demonstrated in the affidavits I have reviewed, are not reasons that would warrant the dismissal of an application to dismiss proceedings. That is not a satisfactory explanation for the delay.

36. In fact Mr Nasil was forewarned by a letter dated 25th April, 2012 from Greg Manda Lawyers, that since the mediation orders of 1st December,2011 that these matters, amongst others, "have been left outstanding". So all the plaintiffs lawyers and the plaintiff did, was reactionary.

37. That is not a satisfactory reason explaining the delay. In my view, in the proper exercise of my discretion, I will dismiss the both proceedings because the plaintiffs have, as I said, sat on their laurels. The defendants have clearly been prejudiced by being dragged into court on a claim that is very badly pleaded and who expect this court to exercise powers that it does not have. The Plaintiffs and their lawyers must be penalized in costs.

Application to dismiss proceedings under Order 12 Rule 40 (a) (b) (c) of NCR.

38. The Applicant submits that these proceedings do not disclose a cause of action is frivolous and vexatious and is an abuse of the process of this Court and ought to be dismissed. Order 12 Rule 40 of the National Court Rules provide for such a reprieve.

39. I will review firstly, the OS filed 15th September, 2010, which seeks substantive declaratory orders. The orders sought and pleadings in the two sets of proceedings are identical. The first two orders sought are in these terms:

" 1. A declaration that the plaintiff is a legitimate landowner company owned by shareholders who have customary land titles to pieces of land located within the petroleum Development License (PDL 1 area.

2. A declaration that the plaintiff is entitled to the Seed Capital/Business Development Grant (BDG) allocated to PDL area landowners.

3...

4..."

40. The balance of the orders relate to the payment of the BDGs.

41. The OS reads that the plaintiff is a company owned by shareholders who have or own customary land titles to pieces of customary land in Hides PDL1, in the Hela Province (my emphasis). As a result of this contention they say that they are entitled to be paid BDGs earmarked for PDL 1 by the State.

42. It means, as far as the relief is concerned, that the Court must establish who the customary landowners are. To do that, this Court must have recourse to the Land Dispute Settlement Act 1975. S. 26 of that Act reads;

"Division 2. – General Jurisdiction of Local Land Courts

General jurisdiction of Local Land Courts
Subject to Section 3 and 4 and to this Part, a Local Land Court has jurisdiction over and in relation to –

(a) a dispute as to an interest in land where the land in dispute is situated wholly or partly within the province for which the Court is established; and

43. The preliminary part of the Act reads;

"Being an Act to provide for the settlement of disputes in relation to interests in customary land, and for related purposes.

PART 1 – PRELIMINARY

1. Purpose of this Act.

The purpose of this Act is to provide a just, efficient and effective machinery for the settlement of disputes in relation to "interests" in customary land by –

(a) encouraging self-reliance through the involvement of the people in the settlement of their own disputes; and

(b) the use of the principles underlying traditional dispute settlement processes.

2. Interpretation.

In this Act, unless the contrary intention appears-

"interest" includes any interest in land of whatsoever nature that is recognized by the custom of the people of the area in which the Land is located "land" means customary land and includes-

(d) an interest in land"

44. These provisions demonstrate that it is only the Local Land Court and the Provincial Land Court who have jurisdiction to deal with disputes in relation to ownership of customary land, and any interest in customary land. Several decisions of this Court have held that the National Court does not have jurisdiction to determine and enquire in issues relating to interests in a customary land or ownership of customary land. See: Golpak v Alongkarea Kali & Ors [1993] PNGLR 8; Ronnie Wabia v BP Exploration Operating Co. Ltd & 2 Ors [1998] PNGLR 8.

45. In the Golpak case, Justice Doherty said:

"It seems to me that the spirit and the intent of the legislature in writing the Land Disputes Settlement Act was to prevent the National Court from arbitrating on the forms of accession and hence ownership or control on interests in customary land and i think therefore that it would be against both the letter and the spirit of the legislation if i took upon me the powers to make declarations on what is an interests in land. I therefore consider that this Court does not, at this time, have jurisdiction to arbitrate in this case and I must therefore refer it to the Local Land Court to determine who have the interest in the land"

46. This is a matter that deals with "disputes as to an interest in land" (see s.26).

47. As seen above, the Land Dispute Settlement Act defines interest as "interest" include any interest in land of whatsoever nature that is recognized by the custom of the people of the area in which the land is located "(See S.2). Land is defined as customary land and includes an "interests in land" (See s.2) .S.3 states that the Act applies to disputes as to "interests in customary land" and s.26 says the Local Land Court has jurisdiction "over and in relation to a dispute as to an interest in land"

48. In the Golpak case (supra), the National Court held that the right to make a contract over an interest in land is caught by s.2 (d) of the Act where land is defined to be customary land and includes an interest in land and further state that a contract for use of land is an "interest in land."

49. The Osborne's Concise Law Dictionary, 8th Edition, defines interest as "a person is said to have an interest in a thing then he has rights, titles, advantages, and duties, liabilities connected with it whether present or future, ascertained or potential, provided they are not too remote.

50. The M & E Professional Dictionaries; A Dictionary of Law; 1983, Second Edition MacDonald and Evans, defines the term interest to mean:

"A right in property, it extends to estates, rights and titles that a man has of, in, to, or out of lands."

51. The Supreme Court in Munum Investments v Paul Ponda & Ors [1995] PNGLR 1 defined "sufficient interest" in the context of locus standi to mean "property interest, propriety interests...."

52. The Supreme Court then, referring to the two National Court cases above (Golpak and Wabia) held:

"So too in the present appeal, it is our considered opinion and we do hold that the phrase" a dispute as to an interests in Land" as used in s.26 and other provisions of the Land Dispute Settlement Act means a property interest or propriety interest or a legal or equitable interests or any financial and monetary interests arising out of one's ownership of such customary lands or over the use of such lands and includes financial benefits and other benefits derived from the use of such lands"(my emphasis)

53. It then went a step further and said:

"It also means any monetary benefit or financial benefits arisingfrom or associated with or in connection with the use of or withone's ownership of such a customary land includes financial Payments and benefits paid to land owners (my emphasis)

54. Then deciding on the case before them, the 3 Judges unanimously said:

" In our view, any monetary or financial benefits arising from the use of or associated with the extraction of natural resources from the customary land described as "Basse Land, Ningra Block B Reserve, Portion 47 " is a dispute as to an "interest in land" comes within the meaning of s.26 of the Land Dispute Settlement Act."

55. The Supreme Court in Louis Lucien Siu v Wasime Land Group Incorporated (2011) SC 1107 held that the National Court does not have any jurisdiction to entertain and deal with disputes as to ownership of customary land and or disputes relating to interests in customary land.

56. The Orders sought in the Originating Summons, are clearly claims for monetary benefits arising out of the use of land or interest in customary land. They read;

"1. A declaration that the plaintiff is a legitimate landowner company owned by shareholders who have customary land titles to pieces of land located within the petroleum Development License (PDL1) area.

2. A declaration that the plaintiff is entitled to the Seed Capital /Business Development Grant (BDG) allocated to PDL area landowners.

3....... "(my emphasis)

57. No doubt, this Court does not have jurisdiction to entertain and deal with this matter.

58. The Applicant also submits that the actions before the court are an abuse of process, disclosing no cause of action and are frivolous and vexatious?

59. The relevant rule Order 12 Rule 40 reads;

"40. Frivolity, etc. (13/5)

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally 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 dismissed generally or in relation to any claim for relief in the proceedings.

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

60. The Supreme Court in Louis Lucien Siu –v- Wasima Land Group Incorporatedra),pra), discussed the application of this rule by adopting what was said in Ronny Wabia (supra),The Supreme Court said;

"Frivolou its ordinary meaning means "not worth serious attention oron or manifestly futile". Proceedings which disclose no reasonable cause of action as well as proceedings which are otherwise unsustainable are otherwise frivolous in this sense. In its ordinary meaning, "vexatious" means "causing vexation or harassment".

"It is used to describe the harassment of a defendant being put into trouble and expense of defending proceedings which are a mere sham, or which cannot possibly succeed. As to abuse of process, it is said that the use of court process to pursue proceeding which disclose no reasonable cause of action or one which is frivolous or vexatious, it is clearly an abuse of that process".

"Sevua J ( in Ronny Wabia) referred to a number of Australian cases dealing with the NSW Supreme Court Rules equivalent of our Order 12 rule 40(1) which we adopt in respect of frivolity the following cases describe their application.

(a) Burton v Bairnsdale [1908-09] 7 CCR at p 92 per O'Conner J.

(b) proceedings where it is clear that if they were allowed to trial, plaintiff would be bound to fail: Tapian v Anderson [1973]VR 321. Proceedings that put the defendant to the trouble of having to defend lawsuits which are useless and futile"

Proceedings which disclose no reasonable cause of action or which are frivolous or vexatious amount to an abuse of the process of court."

61. In my view, all the above definitions apply to this case. Indeed, the proceedings are flawed and cannot remain because this Court does not have jurisdiction to deal with a matter of that nature. Clearly, there is no cause of action.

62. Secondly, for the same reason it amounts to an abuse of process for there is no reasonable cause of action or otherwise no cause of action at all.

63. Thirdly, by the fact that this matter was instituted, resulted in the defendants having to defend themselves at an expense.

CONCLUSION

64. Indeed, I have found for the Applicants under both legs, albeit, that the proceedings must be dismissed for want of prosecution and must be dismissed for having satisfied the requirements under O.12 R.40 (a) (b) (c) of the NCR.

ORDERS

65. The orders of this Court are;

1. The proceedings OS 522 of 2010 and OS 523 of 2010 are both dismissed;
2. That the Plaintiffs will pay all defendants costs of the proceeding including the fifth defendants costs of this application, to be taxed if not agreed.
_____________________________________________________________
Nasil Lawyers: Lawyer for the Plaintiff
Makap Lawyers: Lawyer for Fifth Defendant/Applicant