Toyaga Ltd v Independent State of Papua New Guinea [2018] PGNC 444; N7559 (28 September 2018)

N7559

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 66 OF 2013

BETWEEN
TOYAGA LIMITED
Plaintiff

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Defendant

AND
ISAAC SAILAS, THE CHIEF COMMISSIONER OF THE NATIONAL FIRE SERVICE OF PNG
Second Defendant

AND
MR. ALPHONE KUNDI – MANAGER OF PNG FIRE
SERVICES OF MT. HAGEN
Third Defendant

AND
MR. WILLIAM KORUA – SUB OFFICER OF PNG FIRE
SERVICE – MT. HAGEN
Fourth Defendant

AND
MR. YANGO MALE – SUB OFFICER OF PNG
FIRE SERVICE – MT. HAGEN
Fifth Defendant

AND
THE WATERBOARD OF PNG
Sixth Defendant

AND
MR. JACK MORO, IN THE CAPACITY AS THE MT HAGEN BRANCH MANAGER OF WATERBOARD PNG
Seventh Defendant

Waigani: Dingake J
2016: 15 February, 5 September
2017: 22 May, 11 September, 6 & 13 November
2018: 12 February, 19 & 26 March, 21 June & 6 August

Counsel:

Mr. Moses Saka, for Plaintiff.
Mr. Max Tukuliya, for Defendant.

Cases Cited:

Christopher M Smith v Ruma Constructions Ltd (2002) SC 695

28 September, 2018

1. DINGAKE J: This is an application by the first and second Defendants, to set aside a summary judgment on liability entered against the defendants on the 10^th of December, 2015 and to file a Defence out of time ostensibly in terms of Order 12 Rule 8(3) (a) of the National Court Rules and or Section 155(4) of the Constitution.
2. The facts of this case, briefly, are that the plaintiff filed a writ of summons and statement of claim against the defendants on the 7^th of March, 2013, and duly served process on all the defendants. The defendants failed to file their defence within the prescribed time limit, triggering an application for judgment to be entered summarily by the plaintiff.
3. The application for summary judgment was made in terms of Order 9 Rule 30 and Order 12 Rule 38(1) and (2) of the National Court Rules.
4. On the date set for this application to be heard, and during argument, the plaintiff raised the issue of jurisdiction, contending that this Court has no jurisdiction to deal with the matter as the National Court had already dealt with the matter.
5. The plaintiff argued that the proper steps for the applicant to have taken would have been to file an application for leave to appeal, and or notice of appeal.
6. It is important to deal with the question of jurisdiction first before dealing with the merits of the application, which can only be entertained once the Court has jurisdiction to do so.
7. The thrust of the plaintiff’s case crisply put is that the applicants are essentially asking this Court to review the Orders of another National Court, which he contends is improper and an abuse of Court process.
8. The question whether the National Court can review its decisions (which essentially is what the applicants are requesting this Court to do) has been authoritatively determined in the leading case of Christopher M Smith v Ruma Constructions Ltd (2002) SC 695.
9. In that case the respondent successfully applied for an Order, before the National Court, to set aside an ex parte order for summary judgment, but on appeal, the Supreme Court quashed the decision by the National Court on the basis that the National Court did not have jurisdiction to review the decision of an earlier National Court to grant an ex parte order for summary judgment.
10. In that case, the Supreme Court, per Kapi DCJ (as he then was) in reviewing the decision of the National Court stated that:
    • “The approach taken by the trial judge with respect is fundamentally wrong. In essence the learned trial judge has no jurisdiction to do this under an application to set aside judgment under Order 12 Rule 8 of the Rules. This power belongs to the Supreme Court under the Supreme Court Act or Section 155(2) (b) of the Constitution ...”
11. In my mind, it seems plain, on the authority of Christopher M Smith case (supra), that the National Court does not have jurisdiction to review and set aside the summary judgment granted by another National Court Judge, as that power belongs to the Supreme Court.
12. In the result, for the reasons stated above, this application is misconceived, and is accordingly dismissed with costs.

____________________________________________________________
M Saka Lawyers: Lawyers for the Plaintiffs
Office of the Solicitor General: Lawyers for the Defendants