Bassey v Kane [2021] PGNC 539; N9346 (6 December 2021)

N9346

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 343 OF 2016

PETER INJIA BASSEY
Plaintiff

V
DAVID KANE
First Defendant

AND:
SAM WANGE IN HIS CAPACITY AS THE CHAIRMAN OF THE NATIONAL LAND BOARD OF PNG
Second Defendant

AND:
THE NATIONAL LAND BOARD OF PAPUA NEW GUINEA
Third Defendant

AND:
LUTHER SIPISON IN HIS CAPACITY AS THE SECRETARY FOR DEPARTMENT OF LANDS AND PHYSICAL PLANNING.
Fourth Defendant

AND:
HON BENNY ALLAN IN HIS CAPACITY AS THE MINISTER FOR LANDS AND PHYSICAL PLANNING
Fifth Defendant

AND:
THE NATIONAL EXECUTIVE COUNCIL
Sixth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Waigani: Miviri J
2021: 03^rd & 6^th December

PRACTICE & PROCEDURE – Judicial Review & Appeals – Notice of Motion – Summary Determination – Order 16 Rule 13 (13) (2) (a) & (b) (i) NCR – Service of Settled Review Book – Directional Order Not Complied – Forewarning to Comply – Breach of Order – Materials sufficient balance discharged – Motion Granted – cost follow event.

Cases Cited:

Bassey v Kane [2021] PGNC 414; N9147

PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126

Lord & Company Ltd v Inapero [2014] PGSC 79; SC1624

Kalang Advertising Ltd v Kuppusamy [2008] PGSC 15; SC924

Bore v Malaisa [2013] PGNC 93; N5274

Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PNGLR 299

Motor Vehicles Insurance (PNG) Trust v Viel Kampu [1998] PGSC 49; SC587

Takori v Yagari [2008] PGSC 3; SC905
Counsel:

J. Lome, for Plaintiff
F. Kulala, for First Defendant
P. Yom, for Second – Seventh Defendants

RULING

06^th December 2021

1. MIVIRI, J: This is the Ruling on the Plaintiff’s notice of motion of the 13^th October 2021, seeking Summary determination of his cause of action, because the first defendant has failed to comply with the directions or orders issued by this Court of the 15^th September 2021 under the National Court Rules Order 16 Rule 13 (13) (2).
   
2. And therefore, he motions pursuant that the decision by the Third Defendant to grant a State lease over section 3 Allotment 37, Bomana, Port Moresby to the First Defendant is quashed forthwith; Secondly the title held by the First Defendant over section 3 Allotment 37, Bomana, Port Moresby be cancelled forthwith; and thirdly, a new title be issued over section 3 Allotment 37, Bomana, Port Moresby to the Plaintiff by no later than 30^th October 2021. And that the defendant pays his taxed costs if not agreed.
   
3. The motion is supported by the affidavit of Jeff J Lome of Jefferson Lawyers who act for the plaintiff. He has carriage of the matter. He deposes that they wrote to the first defendant as of the 21^st September 2021 advising them to serve the certified copies of the four sets of the appeal books. And annexure “A” is that letter. Which is verified by service of the subject order on the first Defendant proof by the affidavit of one Jacob Wale filed 22^nd September 2021. He is legal clerk with the Plaintiff’s Lawyers who served the subject court order on Tuesday 21^st September 2021 at 2.50pm, upon the Office of the Public Solicitor urging that they serve the certified copy of the Review book. And he attaches annexure “A” true copy of that letter serving. Of particular relevance in that annexure is what the plaintiff’s lawyers put to the Public Solicitor, “Please ensure to execute Order 3 of the Court order so we have amble time to serve the certified copies of the Review Books.”
   
4. That orders emanates from the decision of this Court in Bassey v Kane [2021] PGNC 414; N9147 (15 September 2021) where amongst others it was ordered that the first defendant is to certify the four (4) copies of the review book served on the 29^th March 2019 and have them returned to the plaintiff by or before Friday the 24^th September 2021. And in that decision, it was apparent that the four copies of the review book were served 29^th March 2019 when by cover of letter by lawyers for the plaintiff disclosing four sets of the Review books were served on Public Solicitor’s Office acting for him. This letter is annexure “A” to the affidavit of Jeff J. Lome sworn of the 08th September 2021 filed the 09^th September 2021. He is acting for the plaintiff and has sworn affidavit to that effect which shows quite clearly that the subject review books served the Office of the Public Solicitor have not been endorsed and returned to the plaintiff. The next phase leading has been stalled not by his fault but of the first defendant.
   
5. Against the material by the plaintiff, there is no defending affidavit, or evidence by the first Defendant attesting if indeed, they have certified the review books served as of the 29^th March 2019. If they have not why and proposition as to the way they seek to address the matter. Because it is important to hear their side of the story in the allegation flowing. And here that opportunity was accorded and there are various instances depicted out in the Judgement set out above of Bassey (supra). It is as if this Judgement meant nothing for the first Defendant. On the eve of this application counsel was drawn as to why there was no explanation filed as to the non-compliance of the Court order relied by the plaintiff. She offered nothing to assist the Court in the cause for her client, let alone a written submission and authorities relying. Because as in adjournments PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010) there must be material filed to support the application. Because without the material there simply is no basis for the court to grant what is sought, here against the summary determination of the matter pursuant to the order relied set out above.
   
6. This is not the situation that was observed by the Supreme Court in Lord & Company Ltd v Inapero [2014] PGSC 79; SC1624 (14 November 2014) which allowed the appeal based on the facts that the primary Judge did not consider that the appellant had vigorously defended the case. Which is the converse in Kalang Advertising Ltd v Kuppusamy [2008] PGSC 15; SC924 (31 July 2008) where the appeal was dismissed. It was reasoned that the conditional order was properly exercised by the primary court, because there was no affidavit material on file explaining in accordance with rule 15 of the Listing Rules 2005. There was no affidavit by the lawyer pursuant to this rule explaining his non-appearance in Court. And therefore, the listing Judge had properly exercised his discretion, because the conditions to avoid striking out the defence and entry of summary judgment were not complied with. That appeal was dismissed.
   
7. And in that case Kalang Advertising Ltd (supra) the orders were specific “Unless the defendant turns up in court and provides reasonable explanation for not turning up in court and assisting at directions hearing for today ... the defence shall be struck out and judgment entered for the plaintiff with damages to be assessed.” Comparably the orders relied on here are relevantly order number 3;
   
8. The first defendant is further ordered to certify the four (4) copies of the review book served on the 29^th March 2019 and have them returned to the plaintiff by or before Friday the 24^th September 2021.
   
9. Which is followed by the other orders following including; The Plaintiff upon receipt will circulate the four copies of the Review Book to the Office of the Solicitor General by or before Monday 27^th September 2021. The Office of the Solicitor General shall certify and endorse the four copies of the Review book by or before Friday the 1^st October 2021 and have them returned forthwith to the Plaintiffs’ Lawyer. The plaintiff’s lawyers shall file the certified endorsed four copies of the review book Monday 04^th October 2021 and shall serve both the first defendants and the other State defendants through their lawyers registered office by or before Friday the 08^th of October 2021 and file an affidavit to that effect in court. The matter will revert for further directions on Monday the 11^th October 2021 at 9.30am in court.
   
10. These are directional orders that were issued by this Court to expedite the due despatch of the matter and were applicable to both parties. Because the review books were served 29^th March 2019 and were in the possession of the first defendant, he was compelled by it to explain why he was not in a position to heed to it. He simply had no material before the Court to explain. The order was tied in the other orders that followed suit to give a scheduled and timely disposal of the matter. Because it was a matter initially filed of 2016 by its reference, there was need to ensure it was timely disposed of, so that Justice was served whoever was seen by it in law facts and the circumstances. For the plaintiff instigator he sought primarily what is the heart of this motion. And the result of the non-compliance by the first defendant was that the whole proceedings came to a dead jam.
    
11. Primarily Court Orders, Directional Orders were meant to be obeyed and complied with. And where an application was made as here the following were relevant for the consideration of the Court, whether there has been a failure to comply with the Court's directions. The failure will warrant the exercise of the Court what was sought out as here. In so deciding relevant considerations including, the nature and extent of the failure to comply, if there was good credible cogent explanation for the failure to comply. The conduct of the proceedings as a whole, and whether the overall interests favoured the application made:
    Bore v Malaisa [2013] PGNC 93; N5274 (24 July 2013).
    
12. The facts here are not in dispute that the first defendant has not certified nor returned the review books as ordered. And notice of that order has been drawn it by the applicant here by the evidence set out above. It is clear that this is a situation on accord as observed in Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PNGLR 299, where on an application for summary judgment under by O 12, r 38 of the National Court Rules, where the facts were not in dispute, the Court determined the point of law which finally settled the matter between the parties.
    
13. What is evident here is that the first Defendant has not refuted the claim by the plaintiff since 2016 on the record of the Court, or any of the defendants for the same. There is no apparent and identifiable cause either on the facts, or in law to vitiate, or draw down the application that has been made by the plaintiff. Leave to vary the initial order made has not been filed by the first Defendant and to comply with its terms has not been made. On the eve of this application not even an extract of argument and primarily an affidavit has been filed to explain noncompliance of the orders: Motor Vehicles Insurance (PNG) Trust v Viel Kampu [1998] PGSC 49; SC587 (29 October 1998). The Court is left with the material and the explanation by the applicant here. It is what is before it in the determination of this matter mindful of the fact that no person should be summarily derailed from the seat of justice without equity: Takori v Yagari [2008] PGSC 3; SC905 (29 February 2008). But it is bound by what materials before it according to law. I am bound in those terms to the material that is relied here.
    
14. Accordingly, there is no reason apparent or identifiable either in law given the facts and circumstances here to deviate from that application. Because the material is that of the applicant. And they discharge the balance that the first defendant has breached the orders of the 15^th September 2021. Today is 06^th December 2021. The application was made 03^rd December 2021. At the time the application was made there was no return filing of either evidence or arguments to the contrary in response either in October or November 2021 by the first defendant. And the history of the matter observed in Bassey (supra) establishes complete lack of interest to cooperate and to see out if there is any place in law for the allegation that the plaintiff has raised. It means his action is not defended against by the first defendant.
    
15. “Essentially, the court will direct an entry of judgment, summarily, where there is sufficient, clear evidence before the court, of the facts on which the claim is made to enable it to conclude that there is no triable issue of fact, and no arguable defence in law.

An application for summary judgment is normally made after the filing of a notice of intention to defend but prior to the actual filing of a statement of defence. But the mere fact of filing a defence does not, of itself, prevent an application under the rule if it can be shown there is in fact no arguable defence. The plaintiff says in this case an order for summary judgment is appropriate,”Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PGNC 59; [1991] PNGLR 299 (16 August 1991).

This in my view is applicable here given the facts and circumstances posed here. The aggregate is that the motion of the Plaintiff is granted as applied.

13 The formal orders of the Court are:

(i) Pursuant to Order 16 Rule 13 (13) (2) (a) & (b) (i) of the National Court Rules, the Judicial Review application is summarily determined in favour of the Plaintiff.

(ii) The decision by the third defendant to grant a State Lease over Section 03 Allotment 37, Bomana, Port Moresby to the First Defendant is quashed forthwith.

(iii) The title held by the First Defendant over Section 3 Allotment 37, Bomana, Port Moresby is cancelled forthwith.

(iv) A new title is issued over section 3 Allotment 37, Bomana, Port Moresby to the Plaintiff by or before Thursday 16^th December 2021.

(v) The defendants shall pay the costs of the Plaintiff if not agreed to be taxed.

(vi) Time is abridged.
Orders Accordingly.

__________________________________________________________________

Jefferson Lawyers : Lawyer for the Plaintiff

Office of the Public Solicitor: Lawyer for the First Defendant

Office of the Solicitor General: Lawyer for Second – Seventh Defendants