Pacific International Hospital v Papua New Guinea Tribal Foundation [2023] PGNC 48; N10151 (6 March 2023)

N10151

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 154 OF 2022

BETWEEN
PACIFIC INTERNATIONAL HOSPITAL
Plaintiff

AND
PAPUA NEW GUINEA TRIBAL FOUNDATION
Defendant

Waigani: Linge AJ
2022: 17 November
2023: 6^th March

PRACTICE & PROCEDURE - Application for leave to amend the Writ-amendment at any stage of proceedings - to correct error of description of a party - whether abuse of process - Order 8 Rule 50 (1), (2) and (3) of the National Court Rules

The plaintiff rendered medical services and provided medical treatment to the defendant from its hospital provided between the 5 to 18 May 2020. The recipient of the medical services and treatment was an employee of the defendant one Girigi Daora Moang, now deceased. A Purchase Order Form 2022-004 signed by the defendant and stamped with its Foundation common seal was released to the plaintiff on 11 May 2020 as instructions to the plaintiff to render medical services to the deceased. The plaintiff treated and rendered medical services to the deceased during the period from 5 to 18 May 2020. Thereafter the plaintiff rendered two (2) invoices, the first being from 5 May to 9 May 2020 totaling K13, 573.85 and the other for the period from 11 to 18 May 2020 in the amount of K23, 273.75. The invoices remained unpaid, hence the filing of this cause of action.

Held:

1. The plaintiff is granted leave to amend the Statement of Claim to correct the description of the plaintiff by inserting “Limited” to its name.
2. The defendant’s application to dismiss the proceeding as an abuse of process is refused.
3. The defendant is at liberty to file its defence within the requirements of the National Court Rules for the proceeding to proceed to trial thereafter.
   

Cases Cited:

Derwent Ltd –vs- Anton Pakena (2017) N7050
New Guinea Limited v Thomason [1975] PNGLR 454
Komboro George v MVIT [1993] PNGLR 477
The Papua Club Inc.v Nasaum Holdings Ltd (2002) N2273
Michael Kewa v Elias M. Kombo (2004) N2688
Ronara v Zurenuoc [2005] PGNC 27; N2936
Kiap (trading as El Roi Hire Cars) v Wari [2022] PGNC354; N9749
Baulama v Post & Telecommunication Corporation [1996] PGNC 35; N1473

Counsel:

Ms. Elizabeth Ngomba, for the Plaintiff
Mr. James Aku, for the Defendant

RULING

6^th March, 2023

1. LINGE AJ: This is my ruling on the Notice of Motion filed by the plaintiff on the 25 November 2022 pursuant to Order 8 Rule 50 (1), (2) and (3) of the National Court Rules seeking leave to amend the Writ of Summons. Simultaneously, I heard the defendant’s Notice of Motion also filed on the 25 November 2022 seeking to dismiss the proceeding for being an abuse of process pursuant to Order 12 Rule 40 (1) (c) of the Rules.
   
2. The claim arose out of unpaid invoices rendered by the plaintiff to the defendant for medical treatment and medical services the hospital provided between the 5 to 18 May 2020 to an employee of the defendant one Girigi Daora Moang, now deceased.
   
3. On 11 May 2020 by virtue of a Purchase Order Form 2022-004 signed by the defendant and stamped with its foundation common seal, the plaintiff was instructed by the defendant to render medical services to the deceased.
   
4. The plaintiff treated and rendered medical services to the deceased during the period from 5 to 18 May 2020. Thereafter the plaintiff rendered two (2) invoices by separating the period, the first being from 5 May to 9 May 2020 totaling K13, 573.85. The details are:
   

No.	Description	Date	Amount
i	Bed charges	05 to 09/05/2020	K2,050.00
ii	Drug	05 to 09/05/2020	K560.30
iii	Food and Beverage	08 to 09/05/2020	K313.50
iv	In Patient	05/05/2020	K50.00
v	Lab Consumable	06 to 05/05/2020	K10.00
vi	Laboratory	06 to 08/05/2020	K2,110.75
vii	Operation Theatre	06/05/2020	K3, 363.00
viii	Pharmacy Consumable	06/05/2020	K32.00
ix	Professional Fee	06 to 07/05/2020	K780.00
x	Radiology	06/05/2020	K3960.00
xi	Surgical Consumable	05, 06, 08/05/2020	K321.30
		TOTAL	K13, 574.00

5. The second invoice rendered by the plaintiff relate to period from 11 to 18 May 2020 in the amount of K23, 273.75 with details as follows:
   

No.	Description	Date	Amount
i	Bed charges	11 to 18/05/2020	K7, 700.00
ii	Cardiology	11/05/2020	K385.00
iii	Drug	11 to 18/05/2020	K1, 252.35
iv	Food and Beverage	11, 12, 14, 15, & 18/05/2020	K850.00
v	In Patient	11/05/2020	K40.00
vi	Lab Consumable	13/05/2020	K3.00
vii	Laboratory	13 to 14/05/2020	K1, 979.75
viii	Miscellaneous	13/05/2020	K398.20
ix	Operation Theatre	13/05/2020	K7, 563.00
x	Pharmacy Consumable	06 to 08/05/2020	K1, 311.25
xi	Professional Fee	06 to 08/05/2020	K40.00
xii	Surgical Consumable	06/05/2020	K1, 655.20
xiii	Sutures	06/05/2020	K96.00
		TOTAL	K23, 274.00

6. The issuing dates and details of the two (2) Invoices issued to the defendant as the sponsor of the deceased which remains outstanding are:
   

Date	Invoice	Charge (K)	Amount (K)	Total Outstanding
09/05/2020	SI-PIH2002709	13, 573.85	NIL	K13, 573.85
18/05/20	SI-PIH2002999	23, 273.75	NIL	K23, 273.75
			TOTAL	K36, 874.60

7. On the 20 May 2020 Tamutai Lawyers upon instructions from the plaintiff wrote to the defendant requesting payment of the outstanding amount within fourteen (14) days. Email exchanges were also generated between the lawyers of the parties in the hope of an out of court settlement, but nothing eventuated.
   
8. The defendant’s neglect and failure to settle the invoices stems from its claim that it did not authorize the raising of the purchase order.
   
9. The parties rely on one (1) affidavit each viz:
   

(i) Affidavit of Elizabeth Ngomba filed on the 25 November 2022 for the plaintiff.

(ii) Affidavit of James Aku filed on the 25 November 2022 for defendant.

10. Two issues are for consideration:
    

(i) Whether the Plaintiff be granted leave to amend its Writ of Summons filed on 10 May 2022?

(ii) Whether the entire proceeding be dismissed as being an abuse of process.

11. Ms. Ngomba of counsel for the plaintiff submits that the amendment being sought does not constitute a new cause of action nor raises a different case, but a correction of a minor typographical error made in the name or description of the plaintiff.
    
12. Counsel for the plaintiff relies on the following cases for Court consideration and submits that leave to amend be granted to the plaintiff:
    

Derwent Ltd –vs- Anton Pakena (2017) N7050
New Guinea Limited v Thomason [1975] PNGLR 454
Komboro George v MVIT [1993] PNGLR 477
The Papua Club Inc.v Nasaum Holdings Ltd (2002) 2273
Michael Kewa v Elias M. Kombo (2004) N2688.

13. Mr. Aku of counsel for the defendant submits that the proceeding is a nullity from the beginning and the plaintiff’s application is an abuse of court process. According to the extract obtained from the IPA Business Names, the Pacific International Hospital is a non-entity.
    
14. Counsel further submits that even if it is registered as a business name, it does not have legal capacity to sue and be sued. He submits that the plaintiff should have named the person or persons who are carrying on business under the business name.
    
15. He submits that this proceeding was commenced by a non-legal entity, a business name and thus is incompetent and void abi initio. Counsel cites Kiap (trading as El Roi Hire Cars) v Wari [2022] PGNC354; N9749.
    
16. At the outset of my consideration, I set out the following:
    

(i) the plaintiff served the Writ on the defendant on the 7 June 2022.

(ii) The defendant filed its Conditional Notice of Intention to defend on the 21 November 2022, five (5) months after service.

(iii) The Writ of Summons was served on the registered office of the defendant on the 7 June 2022.

17. This application by the plaintiff was filed on the 25 November 2022, Doc.#12. Similarly, also on the 25 November 2022 the defendant filed Notice of Motion, Doc.# 10 seeking to dismiss the entire proceedings for being an abuse of the process of the Court. I heard both applications together and the following is my consideration.
    
18. The power of the Court to either grant or not to grant the leave sought by the plaintiff is derived from Order 8 Rule 50 of the National Court Rules. The text of the Rule is set out:
    

“50 (1) The Court may at any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.

(2) All necessary amendments shall be made for the purposes of determining the real question raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.

(3) Where there has been a mistake in the name of a party, Sub-rule (1) applies to the person intended to be made a part as if he were a party.”

19. It is settled law that the power of the Court to grant leave to a party to amend any document in the proceedings is a discretionary matter for the Court. The Court’s power under this rule is discretionary and broad and in exercising that discretion, the Court has the duty to do so judicially and on proper principles, so that justice is done in the case even at the late stage of the proceedings: see New Guinea Limited v Thomason [1975] PNGLR 454; Komboro George v MVIT [1993] PNGLR 477.
    
20. In The Papua Club Inc.v Nasaum Holdings Ltd (2002) 2273, the Court not only affirmed the Court’s broad discretionary power and the duty to do so judicially, but that the Court must be satisfied that the amendments are necessary to enable it to determine the real question in controversy between the parties or to correct any defect or error in the proceedings and on proper principles.
    
21. Several principles emerged from a plethora of case law which His Honour Gavera-Nanu J in The Papua Club Inc.v Nasaum Holdings Ltd (supra) had summarized for consideration whether or not to grant leave to amend even at a late stage of the proceeding. These are:
    
    1. Will the amendment enable the Court to determine the real question in controversy between the parties?

2. Will the amendment correct any defect or error in the proceedings?

3. Will the amendment cause real prejudice or injustice to the other party?
4. Is the application for such an amendment made mala fide or bona fide?
5. Can the other party be fairly compensated with costs for such amendment?
22. In Michael Kewa v Elias M. Kombo (2004) N2688, three other considerations were added to that list by Cannings, J. These are:
    
    1. Is the party applying prevented by its conduct or the manner in which the proceedings have been progressed from being permitted to amend its pleadings?

2. Where do the interests of justice lie?

3. Is the proposed amendment efficacious or is it a proper amendment?
   
23. In Derwent Ltd –v- Anton Pakena (2017) N7050, his Honour David J when dealing with a similar application seeking leave to amend considered the elements the Court should be satisfied with when granting or refusing leave to amend discussed as follows:
    

“14. The power of the Court to either grant or not to grant the leave sought by the plaintiff is derived from Order 8 Rule 50 of the National Court Rules. It was not necessary to invoke Section 155 (4) of the Constitution to establish the jurisdictional basis of the application. Sub-rule (1) of Order 8 Rule 50 provides that at any stage of the proceedings, the Court may grant leave to a party to make an amendment to any document in the proceedings either on application of a party or of its own motion in such manner as the Court thinks fit. Sub-rule (2) then provides that all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.

24. In this case the filing of the plaintiff’s Notice of Motion was on the 25 November 2022, the same date the defendant’s application for dismissal was sealed. It appears from the Court Documents numbering record, (Doc.#10 & Doc.# 12 respectively), that the defendant may have filed ahead of the plaintiff to amend the Writ thus raising the potential argument that the plaintiff may have abused the process of the court in filing its application after being aware of the application by the defendant.
    
25. In my view, the plaintiff seized the opportunity immediately to file this application to amend its description and in so doing, avail itself of the opportunity to cure the defect. I distinguish this from His Honour Gabi J ruling in Ronara v Zurenuoc [2005] PGNC 27; N2936 wherein in a reverse consideration he expressed, “where the plaintiffs have been given an opportunity to repair the situation or cure the defects but have not availed themselves of such opportunity, the proceeding must be dismissed.”
    
26. From a lineage of caselaw some of which I quoted above, the following principles or factors are considered in the instant case.
    

1. Will the amendment enable the Court to determine the real question in controversy between the parties?

The addition of “Limited” to the plaintiff’s description is consistent with the pleading. The plaintiff clearly pleads that it is a “company duly incorporated under the Companies Act ...”. The addition is a logical conclusion of the pleading. Yes, the amendment will cure or rectify an honest mistake.

2. Will the amendment correct any defect or error in the proceedings?

Yes

3. Will the amendment cause real prejudice or injustice to other party?

No. There will not be any prejudice done to the defendant as it has not filed any defence. The question in controversy between the parties in the proceeding is the claim of unpaid invoices, the substantive claim which is yet to be determined, so there is no prejudice nor injustice at this point.

4. Is the application for such amendment made mala fide or bona fide?

There is no evidence to show otherwise so I must consider the application as being made bona fide.

4. Can the other party be fairly compensated with costs for such amendment?

I would answer Yes. The claim being for the unpaid invoices not excessive.

5. Is the party applying prevented by its conduct or the manner in which the proceedings have progressed from being permitted to amend its pleadings?

The plaintiff has acted appropriately and promptly upon discovering the lapse and has taken immediate steps to file this application to rectify the error in good time.

6. Where do the interests of justice lie?

The interest of justice favours the grant of leave to amend the pleading as the proposed amendments will make the plaintiff whole to enable it to present its case to allow the Court to determine the real question in controversy between the parties following the correction of the defect in its name.

7. Is the proposed amendment efficacious? That is, is it a proper amendment?

Yes, the proposed amendment is a proper amendment as it goes to the name and description of the plaintiff and the legal capacity in which the claim arises.

27. This brings me the consideration of Kiap (trading as El Roi Hire Cars) v Wari (supra), a case in which the defendant file Order 12 Rule 40 (1) (c) application to dismiss the proceeding as being an abuse of process for lack of capacity. The defendant asserted that the plaintiff being a business name lacked capacity. The Court dismissed the defendant’s application as being misconceived as the plaintiff had correctly instituted the proceeding in the name of the business name but trading in his own name as properly captioned in that proceeding.
    
28. Here the plaintiff is a company and it pleaded as such but did not properly describe its name with the word “Limited”. It seeks the Court to amend the name by inserting the proper description pursuant to Order 12 Rule 40 (1) (c) of the Rules The issue here is different. The evidence tendered in support of the plaintiff’s application, the Certificate of Incorporation given on the 1 November 2022 depicts the name Pacific International Hospital Ltd, after it changed its name from Maranti Limited on 7 June 2001. For all intent and purpose, it is a valid company.
    
29. It is of no consequence whether a company uses the abbreviation of “Ltd” or the word “Limited”. Section 26 (3) (b) of the Companies Act 1997 stipulates that a company may use “Ltd” instead of the word “Limited” in its name.
    
30. In considering the defendant’s application to dismiss the plaintiff’s application, as an abuse of process under Order 12 Rule 40 (1) (c) of the Rules, I am bound by a long lineage of cases that pronounced that our judicial system should never permit parties to be “driven from a judgement seat in a summary way, without a Court having considered his right to be heard”.
    
31. The plaintiff’s interest in this case is to have its outstanding invoices settled by the defendant and it realized later that it did not properly describe its own name. The pleading attest to itself as a company but without the catchword “Limited” ascribed after the company name. It seeks the Court to amend and correct this error and this where the Court must exercise its broad discretionary power.
    
32. I am mindful of a litigant’s right to have his case heard as guaranteed by the Constitution. I agree with the view that the use and consideration of the Rules must be seen as enhancing such a right to fair and prompt disposal, for example as expressed by Justice Sawong in Baulama v Post & Telecommunication Corporation [1996] PGNC 35; N1473.
    
33. In the end, I am satisfied that the plaintiff’s application has merit. The amendment being sought does not give rise to any new pleading. Both parties’ rights to trial are intact. The defendant is at liberty to file its defence in accordance with the Rules.
    

Order

34. The Order of the Court will be:

1. The plaintiff is granted leave to amend the description of the plaintiff in the Statement of Claim by inserting “Limited” to its description and name.
2. The defendant’s application to dismiss the proceeding for abuse of the Court’s process is refused.
3. The defendant is at liberty to file its defence within the requirements of the National Court Rules to enable this proceeding to proceed to trial.
4. Each party is to pay own costs.
5. Time is abridged to the terms of settlement of this order.

Ordered Accordingly
__________________________________________________________________
Tamutai Lawyers: Lawyers for the Plaintiff
Jaku Lawyers: Lawyers for the Defendant