Inugu v Maru [2020] PGNC 404; N8649 (20 November 2020)

N8649

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 366 OF 2017

BETWEEN:
ROSELYN INUGU, MARGARET INUGU, ANA INUGU, MARGARET INUGU, & VERONICA INUGU as Members of the Management Committee of the YAKAINGI BUSINESS GROUP (INC)
First Plaintiff

AND:
YAKAINGI BUSINESS GROUP (INC)
Second Plaintiff

AND:
HON. RICHARD MARU, MP IN HIS CAPACITY as The MINISTER FOR TRADE INDUSTRY & COMMERCE
First Defendant

AND:
ALEX TONGAYU IN HIS CAPACITY AS THE REGISTRAR OF COMPANIES
Second Defendant

AND:
ADRIAN INUGU, NELSON NEA INUGU & NAKANDA KAIMALAN AS MEMBERS OF THE PURPORTED MANAGEMENT COMMITTEE of YAKAINGI BUSINESS GROUP (INC)
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2020: 21^st September, 20^th November

PRACTISE & PROCEEDURE – Judicial Review & appeals – Notice of motion – Leave to amend Order 16 Statement – Order 16 rule 13 (13) (1), Order 16 Rule 6 (2) & Order 8 rule 50 NCR – Amendment to determine real questions posed – avoiding multiplicity of proceedings – Material relied sufficient – no prejudice – leave granted for amendment of Statement – cost follow event.

Cases Cited:

Morobe Provincial Government v Tropical Charters Ltd [2010] PGNC 6; N3977
Counsel:

A. Serowa, for Plaintiff
P. Yomb, for Defendants

RULING

20^th November, 2020

1. MIVIRI, J: This is the ruling on the notice of motion of the first and second plaintiffs of the 06^th August 2020 seeking leave to amend their order 16 Statement filed of the 27^th March 2017. It is pursuant to the National Court Rules and invokes Order 16 Rule 13 (13) (1), Order 16 Rule 13 (6) and Order 8 Rule 50.
   
2. The citation by counsel of an Order 16 Rule 13 (6) (4) (f) is clearly not of the orders referred. There is no such order and rule in this term within the Rules of the National Court. Unless there is an amendment that the court is not aware of this is clearly misleading the court and it is serious when counsel is seeking orders that have consequences both for and against in the proceedings. Counsel has a duty to check and properly assist the court dispense. Improper citation of materials and law intended to be relied on in court will be fatal both to the case in court and for counsel acting as professional negligence are the extreme. This is a caution in passing to counsel.
   
3. Coming back to the case at hand, an amendment is sought of the order 16 Statement in the terms attached as annexure “RI1” in the affidavit in support of Roselyn Inugu sworn 10^th July 2020. At the outset she is chairlady of the Management Committee of the Second Plaintiff and acknowledges that the amendment will not introduce new grounds but clarity to the issues already before the court. And no prejudice will be caused to the defendants in it. The amendments are set out in paragraph 33 and 34 by line crossed across the face of the original print and setting in place the amendments intended.
   
4. I have considered the totality of the proposed amendments as set out and do not see any introduction of new grounds in the proceedings filed from the original and pending and would grant leave as applied to amend in the terms of the draft attached as annexure “RI1” in the affidavit in support of Roselyn Inugu set out above. In my view the amendments are necessary to identify the real issues and questions raised and will lead to final determinations of the issues raised. There is no prejudice to the other parties and the defendants. All in all, it will assist determination of the real issues posed both for the plaintiffs as well as of the defendants before the court.
   
5. This view is fortified by the affidavit of Hon. Richard Maru dated the 24^th June 2020 document 65 on the court record. He is a current member of parliament and deposes that the decision the subject of the review was made in his capacity as Minister then of Commerce and Industry but he is no longer in that capacity. That he is aware of the internal issues between the family members of the Yakaingi Clan primarily a dispute as to which group is the legitimate management committee of the Yakaingi Business Group Incorporated. That is very clear by the naming of the parties both plaintiffs against defendants in the proceedings. It is important in the light of the intended amendments to see out this matter properly once and for all involving the parties. There ought to be an end to litigation and the issues outstanding questions that must be answered as the real questions underlying must be incorporated so as to meet that end. In this regard having viewed the amendments sought it would follow it would not be contrary to grant given similar in Morobe Provincial Government v Tropical Charters Ltd [2010] PGNC 6; N3977 (22 March 2010).
   
6. The plaintiff has satisfied the balance by the reasons set out above that leave be granted to amend the order 16 Statement in accordance with annexure “RI1” of the affidavit in support of Roselyn Inugu sworn of the 10^th July 2020. Accordingly, the formal orders of the court are:
   
   • (1) Leave is granted to amend the Order 16 Statement of the First and Second Plaintiffs filed of the 27^th March 2017 in accordance with annexure “RI1” of the affidavit in support of Roselyn Inugu sworn of the 10^th July 2020.
     
   • (2) The matter will be mentioned at the directions of this court on Monday 07^th December 2020 at 9.30am for further directions.
     
   • (3) Costs will follow the event forthwith.
     

Orders Accordingly.

__________________________________________________________________

Jema Lawyers: Lawyer for the Plaintiff/Applicant

B.S. Lai Lawyers: Lawyer for Defendants