Dick v Investpac Ltd [2022] PGNC 500; N10033 (18 November 2022)

N10033

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 75 OF 2020

BOKE DICK
Plaintiff

V

INVESTPAC LIMITED
First Defendant

AND
HON. JOHN ROSSO, MINISTER FOR LANDS & PHYSICAL PLANNING
Second Defendant

AND
SAMSON BENJAMIN SECRETARY FOR LANDS & PHYSICAL PLANNING
Third Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2022: 17^th & 18^th November

PRACTICE & PROCEDURE – Notice of Motion – Application for Amendment of Statement – Order 16 Rule 6 (2) NCR – Principles for Amendment – Amendment to Enable the Hearing of Real Issue in Controversy – Amendment to Correct Defect – No Prejudice to Other Party – Mala Fide as Opposed to Bona Fide Amendment – Other Party Can be Compensated with Costs – Is the Other Party Prevented by His Conduct – Interests of Justice – Materials Relied Insufficient – Balance Not Discharged – Motion Denied – Costs follow event .

Cases Cited:

Dads Investment Corporation Ltd v Samson [2021] PGNC 77; N8828
Inugu v Maru [2020] PGNC 404; N8649
Kewa v Kombo [2004] PGNC 83; N2688
Morobe Provincial Government v Tropical Charters Ltd [2010] PGNC 6; N3977
Papua Club Inc v Nusaum Holdings Ltd [2002] PGNC 50; N2273

Counsel:

M. Philip, for Plaintiff
B. Samiat, for First Defendant

RULING

18^th November, 2022

1. MIVIRI, J: This is the ruling on the Plaintiff’s Notice of Motion of the 19^th October 2022 seeking pursuant to Order 16 Rule 6 (2) of the National Court Rules for leave to be granted to him, to amend his statement pursuant to Order 16 Rule 3 (2) (a) of the Rules, to include additional fact and grounds not available at the time of the previous statement that was filed.
   
2. He must appreciate that leave was granted on facts that were contained in the Statement pursuant to Order 16 Rule 3 (2) (a) that he filed of the 30^th November 2020. That is two years ago from today 18^th November 2022. And this matter was granted leave for Judicial review on that basis of that statement on the 07^th July 2021. To come back to redo the statement with amendments must be such that there ought to be very good reasons to invoke Order 16 Rule 6 (2) of the Rules in his favour. The discretion under that Order and Rule must be exercised judicial and swayed by the material that is presented. And which material will enhance Justice in the matter. That the real issue posed in the case will be determined and settled. That without the allowance of the amendments to the statement the real issues posed will not be settled. Further it is not an exercise to correct any defect or error in the proceedings. And in so doing it must not cause prejudice to the other side. And that it is bona fide and not mala fide. Costs will not adequately compensate the other party. And that by its own conduct or the manner in which the proceedings have progressed from being permitted to amend the pleadings. And that it is proper amendment considering.
   
3. He relies on his own affidavit filed of the 19^th October 2022 as the basis for the grant of leave to amend his Order 16 Rule 3 (2) (a) of the Rules and sets out the proposed amendments. These start from paragraph 12.A, 21.1 to 21.3; 22 to 22.6; 23 to 23.6; 24.1 to 24.5 and F3.1 to F8. It is his argument that the amendment will enable the Court to determine the real issues now in controversy between the parties. Because the facts were concealed and introduced by the third defendant in his affidavit. And the additional pleading will fit the evidence introduced by the third defendant. And that he requested for these upon the defendants but was not accorded. Because the subject evidence is produced by the defendants that will help the plaintiff. And he is not introducing new ground at all.
   
4. Against this the first defendant has submitted that the proposed amendment at paragraph 12.A raises a new issue on the breach of principles of natural justice which was not the subject of the grant of leave initially. And therefore cannot be now amended and brought into the statement. That the proposed amendments to paragraph 21, 21.1, 21.2 and 21.3 are of irrelevant matters that were before the land Board not relevant to the issue at hand. Further that the proposed amendments to paragraphs 22 to 22.7 raise the appeal before the Minister not relevant to issue before the Court now. And further that the proposed amendment to paragraph 23 to 23.7 raise new grounds on breach of appeal process under section 62 of the Land Act which leave was not sought and granted for Judicial review. And further paragraphs 24.1 to 24.5 raises new issues which leave was not sought and granted for Judicial review. And finally, the amendments to paragraph F3.1 F5 to F8 again raise grounds that were not the subject of the grant of leave when initially sought. And the aggregate is that the amendments will not allow or enable determination of the real issue between the parties and the application should be refused with Costs.
   
5. Because it will not cure any defects and will be prejudicial to the first defendant who is the title holder and further delay here will be detrimental to his use and enjoyment of the subject property. And the amendment is not made in good faith or bona fide considering. It is made in bad faith or mala fide. And as such he will not be adequately compensated if the matter is further delayed by the application if granted. And the totality is that the application should be refused.
   
6. The Statement in support filed 30^th November 2020, details that review is sought to overturn the decision of the Land Board made in meeting No.1 of 2018, to grant the state Lease of land described as Allotment 81 section 1 in Kiunga Town to the plaintiff applicant. The second defendant respondent’s decision made and published on the 02^nd November 2020 in the National Gazette No. G371 advising the head of state to grant the lease to the First Defendant/ Respondent through an appeal process.
   
7. I have considered the amendments proposed in draft and determine that they are as submitted by the first defendant they were not the initial basis upon which leave was granted for judicial review. And that their inclusion will be introducing new grounds to the proceedings already filed and underway for the substantive hearing of the review now going into the second year since it was filed. Judicial review is time conscious and prompts due discharge not procrastination by technicalities and the like that draw blood on the side not into the heart of the dispute. Here are facts that are adding new ground to the review and which leave was not granted. And their inclusion will not necessarily answer the question that is clear before the proceedings filed as it is on the material now on file. It is not correcting a defect or error in the proceedings but making a new ground altogether in the proceedings. Two years to the alleged breaches in procedure pending the plaintiff to move will not be improved further with the introduction of these amendments proposed. Because to so see will be more prejudicial to the first defendant who will not be adequately compensated by the Costs. Because this is not the time to point fingers but to get the action going if there has been real injustice blood is drawing without any application to it.
   
8. The interests of Justice do not see the grant of the amendments. And they are not proper given all facts for and against. Clearly the law is very clear in this respects in Papua Club Inc v Nusaum Holdings Ltd [2002] PGNC 50; N2273 (16 August 2002) approved and followed in Kewa v Kombo [2004] PGNC 83; N2688 (15 October 2004) which added is the party prevented by its conduct or the manner in which the proceedings have progressed from being permitted to amend its pleadings? And where do the interests of justice lie? Further is the proposed amendment efficacious? That is, is it a proper amendment?
   
9. In my view in the light of all set out above they would not be in the interests of justice both for and against and would not be proper given because Justice will be delayed and denied unnecessarily whilst the matter is clocking up to two years waiting for judicial review if it is genuinely sought. And this court has made similar observations in Morobe Provincial Government v Tropical Charters Ltd [2010] PGNC 6; N3977 (22 March 2010) approved and followed in Inugu v Maru [2020] PGNC 404; N8649 (20 November 2020) and Dads Investment Corporation Ltd v Samson [2021] PGNC 77; N8828 (18 May 2021). The aggregate is that the motion for leave to amend is denied and costs will follow the event.
   
10. The formal orders of the Court are:
    
    • (i) Motion for leave to amend is denied.
    • (ii) Matter is set for directions on Monday 28^th November 2022 to confirm trial date.
    • (iii) Costs will follow the event forthwith.
      

Orders Accordingly.
__________________________________________________________________
Korerua & Associate Lawyers: Lawyer for the Plaintiff/Applicant
Holingu Lawyers: Lawyer for first Defendants