Yuku v Lukom Trading Ltd [2020] PGNC 382; N8646 (13 November 2020)

N8646

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 27 OF 2020

BETWEEN:
MARGARET RASAKA YUKU
Plaintiff

AND:
LUKOM TRADING LIMITED
First Defendant

AND:
HON. BENNY ALLAN, MP-MINISTER FOR LANDS & PHYSICAL PLANNING
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
THE NATIONAL HOUSING CORPORATION
Fourth Defendant

Waigani: Miviri J
2020: 24^th September, 13^th November

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating summons – Notice of motion – Dismissal of entire proceedings – Failure to comply directions Order 16 Rule 13 (13) (2) (a) NCR – Want of Prosecution Order 16 Rule 13 (13) (2) and Order 4 Rule 36 NCR – Summary dismissal – Basis for – prosecution without due diligence – plaintiff of – Adjournment application of– tribal fighting inability – no evidence – prejudice of applicant – balance discharged – dismissal of proceedings – costs follow event.

Cases Cited:

Attorney General Michael Gene v Hamidian Rad [1999] PNGLR 444

Kalinoe v Paul Paraka Lawyers [2014] PGSC 38; SC1366

O'Neill v Eliakim [2016] PGSC 57; SC1539

Tiimothy v Marus [2014] PGSC 50; SC1403
Schram v Kekedo [2018] PGNC 198; N7291
Timbers PNG Ltd v Papua New Guinea Forest Authority [2012] N4638

Counsel:

L. Tangua, for Plaintiff
A. Token, for First Defendant
K. Kipongi, for Second & Third Defendant

RULING

13^th November, 2020

1. MIVIRI, J: This is the ruling of the court on the first defendant’s application pursuant to Notice of motion filed on the 9^th of September 20 pursuant to Order 8 Rule 27 (1) (c) and Order 12 Rule 40 (1) (1) of the National Court Rules for dismissal of the proceedings as an abuse of court process.
   
2. In so making he relies on the affidavit of Luke Komean of the 08^th September 2020 filed of the 09^th September 2020. It gives rise to the following facts which are established.
   
3. Before this proceeding were filed WS 123 of 2020 (CC1) Margaret Rasaka Yuku v Lukom Trading Limited & others was on record. Service resulted in the first defendant filing his defence and notice of motion to dismiss the claim of the plaintiff both were served on the plaintiff. Mention was made before Justice Polume of the motion of the first defendant due to Covid19 lockdown it was adjourned. The plaintiff filed a notice of discontinuance of that proceedings without the consent to the plaintiff. And the writ of summons is annexure “A” to the affidavit of the first defendant and annexure “B” and “C” are respectively true copies of the First defendant’s defence and notice of motion. And annexure “D” is the notice of discontinuance filed by the Plaintiff.
   
4. Because there was no leave obtained nor was there consent by the first defendant discontinued of the WS123 of 2020 (CC1) Margaret Rasaka Yuku v Lukom Trading Limited & others did not occur the proceedings remained intact therefore this present proceedings relating to the same matter cannot remain open in the records of the court. It is an abuse of the process of court to allow it to remain it must be dismissed in accordance with Order 8 Rule 27 (1) (c) and Order 12 Rule 40 (1) (1) of the National Court Rules. They are the jurisdictional basis given the facts set out above for the court to grant accordingly with costs following.
   
5. The plaintiff has rebutted that Order 8 Rule 27 (1) (c) and Order 12 Rule 40 (1) (1) of the National Court Rules are not the jurisdictional basis and cannot be the jurisdictional basis because the procedures provisions of Judicial Review are specifically provided for under Order 16 of the National Court Rules. And therefore, other provisions such as Order 8 Rule 27 (1) (c) and Order 12 Rule 40 (1) (1) are inapplicable and do not give remedy to the application of the first defendant. And therefore, must be dismissed with costs. The plaintiff relies on Attorney General Michael Gene v Hamidian Rad [1999] PNGLR 444; Kalinoe v Paul Paraka Lawyers [2014] PGSC 38; SC1366 (10 July 2014).
   
6. It is a serious application dismissal of the entire proceedings of the Plaintiff on the basis of abuse and therefore the correct order and rules of the court must be invoked to entail which is not the case here by the Order and Rule set out above. And relies on the authorities in the Supreme Court of O'Neill v Eliakim [2016] PGSC 57; SC1539 (29 September 2016); Timothy v Marus [2014] PGSC 50; SC1403 (29 October 2014) and the National court case of Schram v Kekedo [ 2018] PGNC 198; N7291 (3 April 2018). These cases specifically address that the Judicial review applications are under Order 16 of the Rules and not with the other provisions of the Rules as a whole. Because in Timbers PNG Ltd v Papua New Guinea Forest Authority [2012] PGNC 30; N4638 (6 March 2012) it was determined that Order 5 rule 8 of the National Court Rules was inapplicable to a judicial review application under Order 16.
   
7. In my view Judicial Review is a restricted process with its own Rules under the National Court Rules specifically addressing it. It is specific and would not be the case for dismissal pursuant to Order 8 Rule 27 (1) (c) and Order 12 Rule 40 (1) (1) of the National Court Rules invoked by the First defendant here. The submission by the Plaintiff has merit and substance. Accordingly, it is upheld that it is indeed a very serious process to derail a person or litigant in judicial review and therefore the jurisdictional basis must be properly pleaded to lead out the action. Here that is not the case because Order 8 Rule 27 (1) (c) and Order 12 Rule 40 (1) (1) of the National Court Rules are not the jurisdictional basis and cannot be the jurisdictional basis because the procedures provisions of Judicial Review are specifically provided for under Order 16 of the National Court Rules. This is a judicial review proceedings and dismissal will be in accordance with Order 16 Rule 13 (13) (2) (a) (b) of the Rules. That is not the case here.
   
8. It is elementary and the authorities relied on by counsel which I set out above is the law and therefore the First defendant’s application is lacking and will not lead in my view to the balance in his favour his application is without jurisdiction and is not before the court. It is dismissed forthwith with costs to the Plaintiff.
   
9. It is not necessary to venture into the argument raised as to whether or not the other proceedings is alive or not or pending determination because that argument was depended on the issue settled above. It does not have any bearing to the ruling now following to see it out.
   
10. The formal orders of the court are:
    
    • (1) The first defendants notice of motion is dismissed as being without jurisdiction and merit forthwith.
      
    • (2) The matter will be mentioned at the directions of this court on Monday 23^rd November 2020 at 9.30am.
      
    • (3) Costs will follow the event forthwith.

Orders accordingly.
_________________________________________________________________

Tangua Lawyers: Lawyer for the Plaintiff

Office of the Solicitor General: Lawyer for the Third to Fourth Defendants

Office of the Public Solicitor: Lawyer for the First Defendant