N11306

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
 
OS (JR) NO. 120 OF 2021

BETWEEN
JOHNSON JIMBERI trading as PAROX REG.NO 6-2304460
 Plaintiff
   
AND
SAM WANGE, CHAIRMAN OF PAPUA NEW GUINEA
First Defendant 

AND:
BENJAMINE SAMSON SECRETARY -DEPARTMENT OF LANDS & PHYSICAL PLANNING 
Second Defendant

AND
ALE ANE, REGISTRAR OF TITLES-DEPARTMENT OF LANDS 7 PHYSICAL PLANNING 
Third Defendant

AND
JOHN ROSSO-MINISTER FOR LANDS & PHYSICAL PLANNING
Fourth Defendant

AND
INDEPENDENT OF PAPUA NEW GUINEA
Fifth Defendant

AND
DWAYNE ISIFU, AS THE ADMINISTRATOR OF LATE KEVIN ISIFU AND MANAGING DIRECTOR OF WEWAK AUTOPORT LIMITED
Sixth Defendant

AND
WEWAK AUTOPORT LIMITED
Seventh Defendant

WAIGANI:   DOWA J
15, 21 MAY 2025

PRACTICE AND PROCEDURE-Application to set aside exparte order dismissing proceedings for want of prosecution-whether Court has jurisdiction to set aside-consideration of Order 12 Rule 8 (3) of the National Court Rules-factors to be considered -Application granted with conditions.

Cases cited
Thomas Barry v Joel Luma & others (2017) SC1639
Lady Ni Cragnolini & another v Henry Leia (2023) SC2464

Counsel
R Diweni for the plaintiff
 M Koimo for the sixth & seventh defendants

DECISION

1.	DOWA J:	This is a ruling on the Plaintiff's application to set aside an ex parte order made on 3rd June 2024 dismissing the Plaintiff’s proceeding for want of prosecution.

Background

2.    The relevant facts for the purposes of this application are these.The matter was mentioned on the 17th May 2024.  Mr. Abe Ibert appeared for the Plaintiff. Mr Koimo appeared as counsel for the sixth & seventh Defendants.  There was no appearance on the part of the State Defendants.  The Court fixed the matter for listing on 3rd June 2024.  When the matter returned to Court on 3rd June 2024, the Plaintiff and his lawyer did not attend Court.   The matter was then dismissed for want of prosecution. Aggrieved, the Plaintiff filed a Notice of Motion on 25th June 2024 to set aside the exparte dismissal order.  On 11th July 2024, the Plaintiff’s Notice of Motion was dismissed for non-appearance by the parties. This is the Plaintiff’s second application to set aside the ex-parte decision filed 10th September 2024.

The Plaintiffs application

3.	The Plaintiff applies, by Notice of Motion, filed 10th September 2024, to set aside the exparte dismissal decision of 3rd June 2024.  The Notice of Motion is supported by the following Affidavits:

	1.  Affidavits of Johnson Jimberi filed 10th September 2024.
	2.  Affidavit of Ibert Abe filed 27th September 2024.
	3. Affidavit of Ibert Abe  filed 5th July 2024

4. 	At the commencement of the hearing, counsel for the sixth and seventh Defendants submitted that the Motion is incompetent for not specifying the subrule under Order 12 Rule 8 of the NCR and that Section 155 (4) of the Constitution is not applicable as the NCRs sufficiently make provision for such application. 

5.	In my view, section 155 (4) of the Constitution does not apply. As for the failure to choose the appropriate rule, while the arguments are valid, I will allow the Motion to be considered on its merits as Rule 8 sufficiently provides for such application under subrule (3).

6.	Order 12 Rule 8 of the National Court Rules reads: 
	
	8 Setting aside or varying judgement or order. (40/9)
(1) The Court may, on terms, set aside or vary a direction for entry of judgement where notice of motion for the setting aside or variation is filed before entry of the judgement.
(2) The Court may, on terms, set aside or vary a judgement
(a) where the judgement has been entered pursuant to Order 12 Division 3 (default judgement); or
(b) where the judgement has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or
(c) when the judgement has been entered in proceedings for possession of land pursuant to a direction given in the absence of a person and the Court decides to make an order that the person be added as a defendant.
(3) The Court may, on terms, set aside or vary an order�
(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or
(b) where notice of motion for the setting aside or variation is filed before entry of the order.
(4) In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgement) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.
(5) This Rule does not affect any other power of the Court to set aside or vary a judgement or order.”

7. The law on applications to set aside an exparte order dismissing proceeding for want of prosecution is now settled by the five men panel of the Supreme Court in the case, Lady Ni Cragnolini & another v Henry Leia (2023) SC2464. That is, the National Court has the power to set aside an exparte order dismissing proceedings for want of prosecution under Order 12 Rule 8 (3) (a) of the National Court Rules. This Court, therefore, has jurisdiction to hear the application under Order 12 Rule 8 (3) of the National Court Rules.

8. The following considerations apply when determining whether to set aside an ex-parte decision: 

a)	The application must be made within a reasonable time.
b)	The Applicant must show a reasonable explanation for his absence.
c)	The Applicant must have a meritorious claim.
	
a.	Application within a reasonable time

8.	The ex parte decision dismissing the proceedings was made on 3rd June 2024. The Plaintiff filed this application on 10th   September 2024, three months later and not prosecuted until eleven (11) months later.  In my view, a reasonable time could range from a week to 3 months, depending on the circumstances.  In the present case, it seems the Plaintiff became aware of the decision sometime in June 2024.  The Plaintiff filed the first application to set aside the dismissal order on 25th June 2024. That application was not prosecuted and got dismissed on 11th July 2024 for want of prosecution. No explanation is given why the first application was not prosecuted. Order 4 Rule 49 (17) of the National Court Rules gives a discretionary power to the Court to dismiss a Motion which is not prosecuted within a month. In the present case, no explanation is provided why the current application filed 10th September 2024 was not prosecuted for the last eight (8) months. In my view, the delay in prosecuting the Motion is unreasonable.

Explanation for allowing exparte Decision

9.	The explanations for allowing exparte decision were provided by Johnson Jimberi and Ibert Abe. Mr. Iber Abe is a private lawyer. Mr Abe deposes that he was present in Court on 17th May 2024 when the matter was adjourned to 3rd June 2024. He appeared for the Plaintiff on instructions from Kama Lawyers who were acting for the Plaintiff then. He was then instructed by the Plaintiff towards the end of May 2024 to act for him. Mr Abe deposes he was in Goroka on 31st May 2024 and learnt from the National Court Waigani Registry that the presiding judge was away in Lae for circuit, so he extended his stay in Goroka and did not appear in Court. He learnt of the dismissal orders on 18th June 2024. He then filed a Notice of Motion to set aside the exparte orders on 25th June 2024. Mr Abe doe does not give an explanation why he did not prosecute the Motion which was then dismissed for want of prosecution on 11th July 2024.

10.	The Plaintiff, Jimberi, deposes that his previous lawyer, Jerry Kama, successfully applied for leave in November 2021. Between November 2021 and May 2024 there was a delay in having the matter heard due to: a) death of sixth Defendant, late Kevin Isifu, b) lack of practising certificate by his lawyer, Jerry Kama and c) interruptions by dismissal applications for want of prosecution by the sixth & seventh Defendants. When the matter was eventually listed for 3rd June 2024, his new lawyer, Ibert Abe, was informed that presiding Judge was away in Lae, so the lawyer made no appearance in Court. As for him, he was in Wewak and tried to travel to Port Moresby before 3rd June 2024 but due to flight cancellations he was not able to travel until 4th June 2024. He deposes that he has a genuine case and has been deprived of a fair hearing for reasons beyond his control including failures on the part of his lawyers and the Court process. 

10. 	It appears the Plaintiff has had four lawyers since the commencement of the proceedings in August 2021. Leave to apply for judicial review was granted in November 2021. Since then, the Plaintiff has not aggressively prosecuted the matter with due diligence. The explanation that lawyers made no appearance due to unavailability of presiding Judge is lame excuse. This is a Waigani matter, and a return date was fixed which all parties were aware. The explanation provided by the Plaintiff and his lawyer is unacceptable. 

Does the applicant have a meritorious claim

11. 	The final consideration is whether the Plaintiff has a meritorious claim. In my considered view, the Plaintiff does have a meritorious claim. The proceedings concern a property described as Allotment 28, Section 1, Yausosoru, Wewak, East Sepik Province. The property contains an area of .5060 hectares. The Plaintiff has occupied and developed part of the property to the value of K200,000.00, and the latest valuation shows the property is valued at K3.7million. The Plaintiff applied for a Business Lease. He was assured to be granted the state lease by virtue of an exemption from advertisement under section 69 (2) of the Land Act. The land was exempted from advertisement by the then Minister for Lands & Physical Planning on 20th July 2012. Despite the statutory assurances by the then Minister for Lands, and the East Sepik Provincial Lands Division, the PNG Land Board recommended the state lease to late Kevin Isifu & seventh Defendants. Late Kevin Isifu was a member of Parliament then.  The Plaintiff appealed the PNG Land Board decision to the Minister for Lands & Physical Planning but was refused. In my considered view, the Plaintiff has an arguable case. State land is scarce and there is a need for rationalising the limited resources. The Plaintiff has created a legitimate interest in the land by developing it. If he is considered not entitled to be granted the whole of the property, the land is big enough to be subdivided so interested persons could be given a portion. In my view, the Plaintiff should not be completely shut out in his endeavours. 

What orders should the Court make.

12.	That said, the Plaintiff has not been diligent. It is clear, he has not been properly advised and represented by his lawyers. He has had three lawyers in the past. The present lawyer is the fourth. The Plaintiff is very much desirous of having his case heard. However, he and his lawyers have not been diligent in prosecuting the claim. The Court was within its discretion to dismiss the case for want of prosecution. The Plaintiff’s proceeding was dismissed for want of prosecution in his absence without determining the merits of the claim. Although, he has not provided a reasonable explanation for his absence, the Plaintiff has demonstrated he has a meritorious claim in the pleadings and evidence. In the interest of justice, I am inclined to set aside the exparte order on strict conditions. I propose to set aside the order of 3rd June 2024 with conditions that the Plaintiff pay the cost of the proceedings from commencement to date of this order and the proceedings be stayed until the costs of the sixth and seventh Defendants are paid.

Orders
	
13.      The Court orders that:

1.	 The ex parte Orders of 3rd June 2024, dismissing the proceeding, is set aside.
2.	The matter is reinstated.
3.	The Plaintiff shall pay the sixth and seventh Defendants’ cost of the proceedings from the date of commencement to the date of this order.
4.	Further prosecution of the proceedings is stayed until the sixth and seventh Defendants’ costs are settled. 

5.	Time be abridged.
_______________________________________________________________
Lawyers for the plaintiff: Diwenis Lawyers 
Lawyer for the first to fifth defendants: Solicitor General	
Lawyers for the sixth and seventh defendants: Kipes Law