Andama v Niningi [2020] PGNC 381; N8623 (9 November 2020)

N8623

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 11 OF 2020 [IECMS]

BETWEEN:
PETER LANGA ANDAMA as CHAIRMAN OF THE NORTH KOROBA LOCAL LEVEL GOVERNMENT JUHA SPECIAL PURPOSE AUTHORITY
First Plaintiff

AND:
ALEX ARABIA, TREASURER as TREASURER OF THE NORTH KOROBA LOCAL LEVEL GOVERNMENT JUHA SPECIAL PURPOSE AUTHORITY
Second Plaintiff

AND:
HONOURABLE PILA NININGI MINISTER FOR INTER GOVERNMENTAL RELATIONS
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND:
BEN ANUBI HEROWA as ACTING CHAIRMAN OF THE NORTH KOROBA LOCAL LEVEL GOVERNMENT JUHA SPECIAL PURPOSE AUTHORITY
Third Defendant

Waigani: Miviri J
2020: 21^st September, 09^th November

PRACTISE & PROCEEDURE – Judicial Review & appeals – notice of Motion – Order 16 rule 13 (13) (1)(2)(a)(b) Summary disposal – Order 12 Rule 40 (1) (b) (c) Order 8 Rule 27 NCR – Material in sufficient – Balance not discharged Motion denied – cost in the cause.

Cases Cited:

Pruaitch v Manek [2019] PGSC 123; SC1884

Opi v Telikom PNG Limited [2020] PGNC 168; N8290

Counsel:

S. Dadada, for First & Second Plaintiff
J. Kolo, for the Third Defendant

RULING

09^th November, 2020

1. MIVIRI, J: This is the Ruling on the third Defendant’s notice of motion of the 08^th September 2020 seeking pursuant to Order 16 Rule 13 (13) (1) and (2) (a) (b), Order 12 Rule 40 (1) (b) (c), Order 8 Rule 27 of the National Court Rules, “the Rules” dismissal on the basis of having no standing, not exhausting all administrative avenues and being frivolous, vexatious and abuse of process of the Court.
   
2. Secondly, pursuant to Order 12 Rule 1 and Order 14 Rule 10 (1) (2) and (3) of the Rules and section 155 (4) of the Constitution upon dismissal of the entire Proceedings or court orders otherwise that;
   
   • (a) The first and Second Plaintiffs, their agents servants associates, and or whosoever are to surrender, release and or return all the properties and assets of the Juha Special Purposes Authority in their possession including monies, vehicle (s), cheque books, draft JSPA Constitution, Documents, Dockets, and other properties (if any or not named) to the custody of the third Plaintiff and or Juha Special Purposes Authority and;
     
   • (b) Any costs or damages to the assets and properties of the Juha Special Purposes authority upon their surrender, release and or return noticed by the third defendant and or Juha Special Purposes Authority shall be paid or met by the First and Second Plaintiffs..
     
3. In the alternative pursuant to the same order Order 16 Rule 13 (13) (1) and (2) (a) (b), 8 (3) (a) & (4) of the Rules, the ex parte interim Orders of this honourable Court made on the 11^th August 2020 be set aside forthwith.
   
4. Costs are awarded against the First and Second Plaintiffs.
   
5. Reliance is place upon the affidavit of the applicant dated the 2^nd September 2020 he is the third defendant. He deposes that there is a related court proceedings styled OS No. 8 of the 2020 Ben Anubi Herowa v Peter Langa Andama & Ors of the 1^st May 2020 which seeks declaratory orders that the meeting resolutions passed by the Juha Special Purposes Authority Board on the 10^th and 26^th March 2020 to suspend the First and Second Plaintiffs as the Chairman and Treasurer of JSPA is legal and Binding to date.
   
6. This proceeding is instituted by the applicant and seeks orders in the face of the orders of this court that have granted leave to the plaintiffs for judicial review on the 03^rd of July 2020. That decision establishes an arguable case with merit for leave to be granted in the pray of the plaintiffs. This application is made against to dismiss the proceedings on the basis that the plaintiffs have no standing and have not exhausted the internal processes and therefore amounts to an abuse of the process of court. In my view these were the basis of the grant for leave for judicial review. And they have been determined and in the way pleaded is inviting the court to tread the road it has led to the decision already made. It would be erroneous and will amount to an abuse of the process. Because there is no effect drawn from the entire contents of the affidavit relied on from paragraphs 1 to 18 and the contents of all the annexure “A” and “L”.
   
7. The consequence is that there is nothing before the court to determine at this stage of the proceedings by this motion by the third respondent. It is an abuse of process by the Order and the rules of Court which are relied on by the respondent here at the outset, which orders and rule have self- terminated this proceedings instituted as being without merit abuse of process and are not before this court. It has been considered an abuse of the process of court where proceedings instituted have been improperly used or have been used for an improper purpose. And this is not restricted because abuse is depended on the circumstance by facts circumstance peculiar to each case: Pruaitch v Manek [2019] PGSC 123; SC1884 (6 December 2019).
   
8. Justice must be allowed to run its course without premature ejection and here it is pertinent that the issues that are raised are properly addressed in the Judicial review proceedings granted because what is involved is a project that benefits landowners that particular locality and the State. Its dismantling by the shallow waters of technicalities will leave what is in the deep still lurking and that is not real justice. Here the originating process pleaded do not warrant by the material relied to go that way. Rather the contrary in simple the balance does not fall in favour of grant and so it will be dismissed with costs.
   
9. Which are on an indemnity basis because rather than wait and properly institute and reply to the Substantive Notice of motion for judicial review on the leave granted this application has being filed without any merit in the way it has been drafted. It has been drafted in haste rather than on proper professional consideration of the law and facts to arrive at the pleadings to attain. Here that has not been viewed and so where the court is unnecessarily put to time in hearing and the parties are in the same brought into court. The court will control and maintain quality grip on its process and procedure. An effective way is to have parties ensure by indemnified the court and the parties so that what is brought is warranted in law and the facts to pursue. According cost here given the facts set out above is on an indemnity basis on a Solicitor client basis third respondent to pay for the plaintiffs. I am conversant that it is discretionary but the facts here warrant: Opi v Telikom PNG Limited [2020] PGNC 168; N8290 (29 April 2020).
   
10. Accordingly, the formal orders of the court are:
    
    • (i) The motion is denied and dismissed in its entirety as being an abuse of process.
      
    • (ii) The third defendant will pay the cost of this proceeding on an indemnity basis to be taxed if not agreed.

Ordered accordingly.

__________________________________________________________________

Kumbari & Associate Lawyers: Lawyers for the Plaintiff/Applicant

Coomers Lawyers: Lawyers for Third Defendants