Yasi v Suka [2020] PGNC 309; N8486 (25 August 2020)

N8486

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 589 OF 2019

BETWEEN:
JUDAH YASI
Plaintiff

AND:
JUDAH SUKA in his capacity as Registrar of Incorporated Land Group
First Respondent

AND
HON BENNY ALLAN in his capacity as Lands and Physical Planning Minister
Second Respondent

AND
ANDIE MALO in his capacity as Director of Customary Land Registration
Third Respondent

AND
HENRY WASA in his capacity as Registrar of Titles
Fourth Respondent

AND
MONTAR MEYAB NARON LAND GROUP INC
Fifth Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Lae: Dowa AJ
2020: 29^th July & 25^thAugust

PRACTICE AND PROCEDURE – motions by both Plaintiff and fifth defendant- Plaintiff is seeking leave for extension of time to comply with Orders of this Court - Fifth Defendant is seeking orders for dismissal of proceedings for failure by Plaintiff to comply with those orders - filing of Notice of Motion after grant of leave is mandatory requirement under Rule 5(1) and cannot be dispensed with - no express provision in the rules that prescribe for filing of Notice of Motion within 21 days - Court has discretion to extend time, for the filing of Notice of Motion by invoking powers given under Order 1 Rule 15 of the National Court Rules – plaintiffs motion is granted – defendants motion to dismiss plaintiffs proceedings is dismissed

Cases Cited:

Timbani Longai v Steven Maken (2008) N4621,
East New Britain Provincial Government v Public Service Commission

Chairman, Philip Kereme (2017) N6706,

Alex Timothy v Hon. Francis Marus (2014) SC1404,

Peter Neville v National Executive Council (2015) SC143

VNA Security Services Ltd v BUP Development Co. Ltd (2020)N8315

Les Curlewis v David Yuapa (2013) SC 1274

Kipane v Anton (2003) N2429

Bomson v Hart (2003) N22428

Serave v Bahafo (2001) N2078

Counsel:

B. Ovia, for the Plaintiff
A. Chillion, for the Fifth Defendant
S. Maliaki, for the First, Second, Fourth & Sixth Defendants

RULING

25^thAugust, 2020

1. DOWA AJ: This is a ruling on two motions filed by the Plaintiff, and the Fifth Defendant respectively. The Plaintiff is seeking leave for extension of time to comply with Orders of this Court granted on 28^thMay 2020. The fifth (5) Defendant is seeking orders for dismissal of proceedings for failure by the Plaintiff to comply with those orders granted 28^th May 2020.

Background Facts

2. The Plaintiff is a customary landowner of land known as Bampu lompon Mpur, Huon Gulf District, Morobe Province. The Plaintiff has filed an application for leave to seek judicial review of various decisions by the First, Second, Third and Fourth Defendants in granting ILG and Certificate of Title on land allegedly owned by the Plaintiff, to the Fifth Defendant.

3. On 28^th May 2020, the Court granted leave to the Plaintiff to file a substantive application for judicial review.

4. The time period given by the Court and allowed by the Rules lapsed on or about 18^th June 2020.

5. The Plaintiff filed its substantive Notice of Motion on 25^th June 2020, which is about 7 days outside of the 21 days allowed by Order 16 Rule 5 of the National Court Rules.

6. This is now the basis of the two competing motions.

The Motions

7. I will deal with the two motions together. I intend to consider the Plaintiffs Notice of Motion first. The ruling on the Plaintiff’s application will determine the fate of the Fifth Defendants Notice of Motion/Application.

8. The Plaintiff seeks the following:

1. Pursuant to Order 1 Rule 15 and Order 12 Rule 1 National Court rules 1983 as amended, leave be granted to the Plaintiff extending the initial 21 days ordered on the 28^th May 2020 by another 14 days, and to allow and accept the Notice of Motion filed on the 25^th June 2020 as been duly filed thereto; or
   
2. Alternatively, pursuant to Order 12 Rules 4 (2) and (5) of the National court Rules 1983 as amended the Notice of Motion filed on 25 June 2020 be accepted as duly filed within time wherefore the 21 days as ordered on the 28^th May 2020 compute from the 04^th June 2020 being the date when the Order was served on the Plaintiff by the National Court Registry; and
   

Issues
9. Whether or not the court grant an extension of time to the Plaintiff to comply with the orders given 28^th May 2020, and accept the filing of the Notice of Motion on 25^th June 2020 deemed due compliance of the orders of court.

Law

10. The application is made under Order 1 Rule 15, and Order 12 Rule 1 of the National Court Rules.

1. Order 1 Rule 15 provides:
   

“15. Extension and abridgment (2/3)

(1) The Court may, on terms, by order extend or abridge any time fixed by the Rules or by any judgement or order.

(2) The Court may extend time under Sub-rule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires.

(3) The period within which a person is required by these Rules or by any order to serve, file or amend any pleading may be extended by consent without an order for extension.”

2. Order 12 Rule 1 provides:
   

“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 judgment 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.”

11. The principles governing application for extension of time to comply with time period prescribed by Statute, or National Court Rules or Orders of court are settled in this jurisdiction: See Kipane v Anton (2003) N2429, Bomson v Hart (2003) N22428, Serave v Bahafo (2001) N2078. The Court in appropriate cases can extend time for compliance in the exercise of its discretion.

12. The relevant considerations are:

1. Reasonable explanation for default
2. Period of delay

100. Prejudice to the other party

4. Interest of Justice
   

Submissions

13. The Plaintiff relies on the affidavits of Judah Yasi filed 21 July 2020, and his affidavit of Mr Baru Ovia, also filed on 21^st July 2020. Mr Baru deposes that he had an honest miscalculation of the date when the orders were entered. Mr Ovia deposes, he was of the view that the last day for the filing of the Notice of Motion was 25^th June 2020. Accordingly, he filed the Notice of Motion on 25^th June 2020. The Notice of Motion was filed about seven (7) days after the lapse of 21 days.

14. Mr Ovia submitted that the Court exercise its discretion in favour of the Plaintiff in granting an extension of time. A refusal of the Plaintiffs application on the procedural error will greatly prejudice the Plaintiffs substantive interest in the proceedings.

15. Mr Chillion, Counsel for the Fifth Defendant opposed the Plaintiff’s application. Mr Chillion submitted that for non-compliance of the Orders of 28^th May 2020, and the National Court Rules are not simple procedural errors. Mr Chillion submitted that the requirement of filing a Notice of Motion after the grant of leave is a mandatory requirement under Order 16 Rule 5(1) of the National Court Rules.

16. Mr Chillion submitted a failure to file a Notice of Motion within (21) days after a grant of leave is a serious breach of Order 16 Rule 5 of the National Court Rules. He submitted the requirements under Rule 5 is mandatory and therefore the Court does not have discretion to extend time.

17. Mr Chillion referred to the decisions in the cases of Timbani Longai v Steven Maken (2008) N4621, East New Britain Provincial Government v Public Service Commission Chairman, Philip Kereme (2017) N6706, and Alex Timothy v Hon. Francis Marus (2014) SC1404, and Peter Neville v National Executive Council (2015) SC143 in support of his submissions for dismissal.

Reasons for decision

18. I have read the applications, the affidavits and submissions of both counsel and the case law referred to by counsel.

19. Judicial Review proceedings are governed by Order 16 of the National Court Rules. Procedurally, the proceedings are commenced by originating summons, seeking leave to apply for judicial review, supported by a Statement under Order 16 Rule 3. After leave for Judicial Review is granted, a Notice of Motion is filed seeking substantive Judicial Review under Order 16 Rule 5(1) of the National Court Rules. This mandatory process and procedure is settled and affirmed in this jurisdiction, especially by the Supreme Court in Alex Timothy v Hon Francis Marus (supra).

20. In the present case leave to apply for Judicial review was granted on 28^th May 2020. The Plaintiff filed the Notice of Motion, for Judicial Review, on 25^th June 2020, about 7 days after the lapse of the 21 days and is seeking leave of court for rectification.

21. In my view, the filing of Notice of Motion after grant of leave is mandatory requirement under Rule 5(1) and cannot be dispensed with. This is confirmed by the line of cases referred to in this judgment.

22. There is however no express provision in the rules that prescribe for the filing of the Notice of Motion within 21 days. The time period of 21 days has become the “prescribed” period by implication, application and translation of Order 16 Rule 5 (4) of the National Court Rules which reads:

“Within 21 days after the grant of leave the Notice of Motion shall be allocated a date of hearing by the Registrar after consultation with the parties.”

23. The (21) days time period is prescribed for the allocation of hearing date, after the Notice of Motion is filed. It is to trigger the process of the hearing of the application for Judicial Review. Whilst the mode of applying for judicial review is mandatory under Rule 5(1), and not subject to dispensation, the same cannot be said of the time period within which to file a Notice of Motion. In my view, the Court has a discretion to extend time, for the filing of a Notice of Motion by invoking the powers given under Order 1 Rule 15 of the National Court Rules.

24. I now refer to the other cases relied on by Counsel for Respondent in support of his application for dismissal of the proceedings.

25. In the case of Timbani Longai v Steven Maken (supra), the substantive Notice of Motion was not filed. Instead, the Plaintiff filed a Notice of Motion seeking dispensation of the requirements under Order 16 Rule 5(1) of the National Court Rules. In that case, the Court correctly held that the requirement of Order 16 Rule 5(1) is mandatory and cannot be dispensed with. That case is distinguishable, to the present case.

26. In the case of East New Britain Provincial Government v Public Service Commission Chairman (Supra), the Plaintiff did not file a substantive Notice of Motion after the grant of leave. The Plaintiff sought to rely on an amended Notice of Motion previously filed before leave. The Court correctly held that there was no substantive Notice of Motion filed after leave was granted. The Notice of Motion filed before leave could not be used as it was incompetent. I agree with his Honours view. However, that case is distinguishable to the present case.

27. In that case his Honour Anis J commented, after dismissing the proceedings, that the fate of the proceedings could be different if the Plaintiff filed an application seeking extension under Order 1 Rule 15 of the National Court Rules. Again, that case is therefore distinguishable to the present case, as the Plaintiff in the present case is seeking extension of time for the Notice of Motion belatedly filed.

27. In Peter Neville v National Executive Council (2015) SC 1431 The Supreme Court dismissed an appeal on competency grounds. The Court did not directly deal with the issues under consideration and therefore is not relevant.

28. In my view, the application of the Rules should be flexible so as to do justice in the circumstances of each case. In VNA Security Services Ltd v BUP Development Co. Ltd (2020) N8315 I said this at Paragraph 10 of my Judgment:

“10. The Court has the discretion to grant the orders sought, or refuse same and make such other orders to do justice in the circumstances. Under Order 1 Rule 7, of the National Court Rules the Court has a discretion to dispense with the requirements of the rules of court. The Court can also give extension of time to comply with the rules under order 1, Rule 15 of the National Court Rules. However, the exercise of the discretion has to be a judicial exercise taking into account the conduct of parties, the interest of justice, the smooth flow of justice administration by the Court, and the impact it would have on the parties. The rules of the National Court are not an end to themselves, but a means to achieving a just resolution of the dispute between parties. Refer; Niugini Mining v Bumbandy (2005) SC 804”

29. In Sam Koim v Hon Peter O’Neill (2014), Gavara-Nanu J in addressing the competency of Notice of Motion in judicial review said the application of the Rules should be flexible to do justice. At paragraph 53 of the Judgment, His Honour said:

“53. Judicial review involves the exercise of equitable supervisory jurisdiction thus, the application of the Rules by the Court should not be rigid: Les Curlewis and Ors v. David Yuapa (2008) SC1274. The Rules should be flexible in their application and be the means to do justice, so that where there is a defect or irregularity in the pleadings, or an omission or a non-compliance with the requirements of the Rules, if such defect, omission, irregularity or non-compliance do not result in the prejudice to the opposing side, then such defect, omission, irregularity or non-compliance should be remedied with amendments. In Innovest Limited v. Hon. Patrick Pruaitch, Minister for Forests and Climate Change (OS JR. 64 of 2014) 17 March, 2014), this Court in the exercise of its discretion under Order 1 rr. 7 and 8 of NCR, allowed the plaintiff to amend the originating summons to plead the subject decision which had not been pleaded. The amendment was allowed because the subject decision was pleaded in the Statement in Support. The Court was of the view that this was substantial compliance with the Rules. Furthermore, the amendments did not prejudice the opposing party.“

30. In Les Curlewis v David Yuapa (2013) SC 1274, the Supreme Court said where a Court is considering dismissal of a case summarily for non-compliance of Rules or Orders of Court, should only be done where there is evidence that the defaulting party’s conduct is intentional, and the other party has settled prejudiced. At paragraph 35-37 of the Judgment the Court said:

“ 35. Whether a non compliance relates to the requirements of a rule or directions of the court, dismissal of a case without trial ordered on the basis of such non compliance in our opinion should only be in clearest of cases where the failure is recurrent and that the party moving would or is likely to suffer irredeemable or serious prejudice as a result of such non compliance and that the party moving cannot be sufficiently compensated by costs; or where the failure is persistent and deliberate thus making the failure extra ordinarily serious thus resulting in irredeemable or serious prejudice to the party moving and where non-compliance is symptomatic of the failure to prosecute the proceeding: Curtain Bros (PNG) Ltd (supra); Ace Guard Dog Security Services Ltd (supra); Patrick Basa v. Bob Dadae and Andrew Trawen – Electoral Commissioner of Papua New Guinea N4991; Air Marshall McCormack and Anor (supra) and Kawaso (supra).

36. In Westpac Bank (PNG) Limited and Ors v. Hugo Canning Company Pty Ltd, which was adopted by the Supreme Court in Curtain Bros (PNG) Ltd (supra), the Supreme Court comprising Kapi DCJ (as he then was), Hinchliffe and Sheehan JJ, (20 December, 1991) considered an application by the plaintiffs to strike out the defendant's defence and enter judgment for them for failure by the defendant to give discovery under Order 9 r 15 (1) (b) of the National Court Rules. The Court said:

"The purpose of O 9 r 15 is to ensure compliance with notice, or more particularly orders for discovery to enable parties to "get on" with the trial. This order of a Court dismissing a party is not one made for that purpose and does not carry out the intent of the rule. In the result, the dismissal of the party from the action for failure to give discovery can only be justifiable when the court finds that the failure or refusal can be seen as a tactic to abort the trial."

37. The principles applied in these cases also demonstrate that any decision by the Court to summarily determine or dismiss a case should not be readily made and that such decision should only be made in clearest of cases where there is evidence that the conduct of the defaulting party is intentional and the right of the opposing party to a fair hearing has been seriously or irredeemably prejudiced or denied.“
    

31. Applying the above principles, I am inclined to grant orders sought by the Plaintiff. The Plaintiff has sought leave and was granted leave. The Court has formed a view that the Plaintiff has an arguable case. He was given leave to file his Notice of Motion within 21 days. He filed his Notice of Motion for the substantive application on 25^th June 2020, about 28 days after grant of leave. He was out of time for only 7 days. Such delay is not unreasonable. The Plaintiff and his lawyer have provided the reasons for the delay, and that was for an honest mistake in the calculation of the time period. In my view, the delay has not caused any substantial prejudice to the Defendants, which cannot be compensated by cost. On the other hand, a dismissal of proceedings will cause grave injustice to the Plaintiff.

32. For these reasons, I will grant extension of time for the Plaintiff to file and serve the Notice of Motion, and accordingly grant the Orders sought in the Notice of Motion.

33. Having ruled in favour of the Plaintiff, I now decline to grant the orders sought by the Fifth Defendant in seeking dismissal of the proceedings, for the same reasons.

34. As to the issue of cost, I am of the view that the current motions were brought about due to the failure by the Plaintiff to comply with the rules and orders of Court. In the circumstances, the Plaintiff shall pay the cost of the application to be taxed, if not agreed.

ORDERS

(1) The Fifth Defendants Notice of Motion filed 9^th July 2020 is refused.

(2) The Plaintiffs Notice of Motion filed 21^st July 2020 is granted.

(3) The Notice of Motion for Judicial Review filed on the 25^th June 2020 be accepted and is deemed to have been filed in compliance with Orders of 28^th May 2020 and these orders.

(4) The Plaintiff shall pay the cost of both applications to be taxed if, not agreed.

(5) Time be abridged.

Biliou Lawyers : Lawyer for the Plaintiff

Chillion Lawyers : Lawyer for the Fifth Defendant

Solicitor General : Lawyer for the First, Second, Fourth & Sixth Defendants