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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS. NO. 1070 OF 1998
BETWEEN
ISIDORE KASENG
AND 24 OTHER PERSONS ARE LISTED IN THE SCHEDULE
AND:
MICHAEL DEBEGE,
ACTING ADMINISTRATOR, DEPARTMENT OF
WESTERN PROVINCE KINA FINANCE LIMITED
First Defendant
FLY RIVER PROVINCIAL GOVERNMENT
Second Defendant
COLLIN TRAVETZ,
SECRETARY, DEPARTMENT OF PROVINCIAL AFFAIRS
Third Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
WAIGANI: KANDAKASI, J.
2004: 08th October
26th November
JUDGMENTS AND ORDERS - Certification of judgments against the State – Purpose of – Facilitate satisfaction of judgment or order and not itself constitute an order or judgment - Entry of – Orders not made by the Court – Effect of – Abuse of Court’s process – Certification invalid – Effectively error on Court record – Open for correction under "slip rule" – Delay in application for correction not detrimental but entitles other party to costs.
Papua New Guinean Cases Cited:
Drew v. Towers Investment Pty Ltd [1973] PNGLR 450.
Simon Mali & Ors. v. Independent State of Papua New Guinea (03/04/02) SC690.
The Honourable Andrew Baing & The State (23/02/2000) and PNG National Stevedores Pty Ltd & BSP (23/02/2000) SC672.
Coecon Limited (Receiver/Manager Appointed) v. The National Fisheries Authority of Papua New Guinea (28/02/02) N2182.
Papua New Guinea Banking Corporation v. Jeff Tole (27/09/02) SC694).
Internal Revenue Commission v. Dr. Pirouz Hamidian-Rad (22/03/02) SC692.
Orogen Minerals Limited v. Internal Revenue Commission (26/09/03) N2464.
Richard Dennis Wallbank and Jeanette Minifie v. The Independent State of Papua New Guinea [1994] PNGLR 78.
Re Nomination of Governor–General; Application by Sir Pato Kakaraya (No 2) (18/06/04) SC752.
Umapi Luna Pakomeyu & Ors. v. James Siai Wamo & Ors. (12/11/04) N2718.
Overseas Cases Cited:
Autodesk Inc. v. Dyason (No.2) of (1993) 67 CLR 270 where Mason CJ., at page 302.
Counsel:
K. Kua for the Defendants/Applicants.
P. Parkop for Plaintiffs/Respondents.
26th November 2004
KANDAKASI J.: The defendants (applicants) are applying by notice of motion filed on 22nd September 2004 for a set aside of two certificates of judgment against the State dated 30th April 2004 and 7th May 2004. The application is under O 8 r 59 of the National Court Rules (Rules). The applicants claim that, the Court did not make any order forming the foundation for either of these certificates. Alternatively, they submit that if the Court made such orders, there is then an error, on the face of the certificates of judgment and therefore the Court’s record, which requires correction under the slip rule.
The plaintiffs’ (respondents) oppose the application saying the Court made the relevant orders by consent of the parties. They also submit that, there is no error for correction in the way argued for by the applicants and that the orders were the subject of certification by the Solicitor General and not the Court. Further, they take issue on the timing of the application and submit that, there has been unreasonable delay, which the applicant has not satisfactorily explained. Based on these factors, they ask for a dismissal of the application.
The Relevant Issues
From the arguments of the parties, it seems the issues are as follows:
I will consider the first issue first as a determination of that issue in the negative, in my view, might render a consideration of the other issues unnecessary or only secondary. However, before getting into a consideration of the issues, it is necessary to set out the evidence and the facts they support and to appreciate the background to the issues to properly determine them. Accordingly, I descend into that aspect now.
The Relevant Evidence
The applicants rely on the Affidavit of John Kumura sworn on 21st September 2004. Mr Kumara is a senior lawyer with the Solicitor General’s Office. He deposes that from time to time, he has acted on the matter or alternatively acted as liaising officer between the Solicitor General’s Office and external lawyers who acted on behalf of the Defendants.
For the respondents is an affidavit by a Gonene Kurokuro, sworn on 6th October 2004. He is one of the plaintiffs in these proceedings, responding to the application. The applicants have also filed the affidavit of Powes Parkop, sworn on 23rd August 2004 and filed on 3rd September 2004. That affidavit covers the circumstance leading to the two certificates of judgment under consideration.
The Relevant Facts and Background
From the above affidavits, come the relevant backgrounds and facts giving rise to the application and the issues before this Court. This starts with the issuance of the writ of summons on 29th October 1998. The statement of claim endorsed thereto contains a claim for various declaratory relief orders together with a claim for an order at paragraph 18.6 that:
"The Third Defendants pay the Plaintiff named in schedule 1 attached to the Writ of Summons, the amount specified in schedules 2 and 3 attached to this Writ of Summons".
Schedules 2 and 3 set out each of the plaintiffs liquidated claims totalling K2,148,834.
On 18th March 1999, the Court entered default judgment against the defendants with damages to be assessed. About two years later, on 16th February 2001, on the application of the second defendant, the default judgment was varied in the following terms:
"That pursuant to Order 8 Rule 59 of the National Court Rules, paragraph 1 of the Default Judgment entered on 11th day of June 1999 is corrected to read as ‘Default Judgment is entered in favour of the Plaintiff against the Fourth named Defendant.’"
Consequentially, the Court deleted the default judgments as against the first, second and third defendants. Hence, there is no judgment against those defendants at the present.
On 16th December 2003, the Deputy Governor of Fly River Provincial Government, Hon. John Malom MPA, wrote to Mr John Kumura to settle the Plaintiffs claim at K16, 035,000. In the following year on 14th January 2004, the Governor of the Fly River Provincial Government, Hon. Bob Danaya wrote to their then Lawyer, Henaos Lawyers informing them of a termination of their services and the appointment of the Solicitor General as lawyers for the Second Defendants as well. A copy of this letter was sent to Mr John Kumura in his capacity as Acting Solicitor General and to Mr Nelson Hungrabos, the Provincial Administrator.
On 4th February 2004, Hon. Bob Danaya, wrote to the Fly River Provincial Government’s in-house lawyer, Mr Sinclar Gore instructing Mr. Gore to liaise with Mr. Kuvi of the Solicitor General’s Office to settle the Plaintiffs claim "in full and in a manner requested by the claimants." This letter was also copied to the now Acting Solicitor General, Mr Francis Kuvi. In that same letter, Governor Danaya also said, "I endorse the submission by the claimant’s lawyers to the office of Solicitor General" without mentioning any specific amount(s).
Following those correspondence, the Court entered a judgment by consent in the following terms on 21st April 2004:
"1. That the Defendants settle the Plaintiffs claim as agreed between the Plaintiffs and the Second and Fourth Defendants.
As would be clearly apparent, no specific amount(s) in damages or otherwise, constituted part of these consent orders. It only endorsed an unspecified agreement between the parties to settle the claim.
On 30th April 2004, the Plaintiff by their lawyers filed a certificate of judgment incorporating a sum of K20,250,000 as the judgment debt. The certificate was duly endorsed by the Solicitor General by signing it. A few days later on 7th May 2004, the Plaintiff’s lawyers filed a second certificate of judgment which did not specify a liquidated amount and instead annexed to it a schedule which incorporated the sum of K20,250,000 as the judgment debt. Unlike the earlier one, the Solicitor General did not sign this certificate of judgment. How did this happen and the related question of did the Court make any specific orders against which the certificates were filed becomes important. I therefore turn now to the later part of this question and the validity of the certificates.
Did the Court Make an Order for K20, 250,000.0 and
Are the Certificates of Judgment Valid?
The first part of the question is a question of fact, which requires an answer by reference to the evidence and facts emerging there from before me. As might be apparent from the above statement of the relevant evidence and the facts, there is simply no evidence that points to the Court making an order that forms the foundation for the certificates of judgment. The respondents do not say the Court made an order for the amounts in question. The endorsements on the Court file are silent on the point in issue. Indeed the last of the orders made and recorded are the orders of 21st April 2004, which makes no mention of any figures in Kina terms.
Order 12 of the Rules provide for the making and entry of orders and judgments. In so far as is relevant r. 1 of that order provides:
1. General relief. (40/1)
The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process.
(Emphasis supplied)
This makes it very clear from the very beginning of the provisions in the Rules that deals specifically with judgments, orders and making of orders that, it is the Court that has the power to make orders in all proceedings before the Court. The rest of the provisions of Order 12 in particular rr.10, 14 and 20 strengthens this position. These rules in association with the other provisions in this Order provide as to the taking out of minutes, lodgment and entry of judgments or orders. All of these can take place where the lodgment and entry of the order or judgment is authorized. Rule 10 for example makes that clear in these terms:
"Where the entry of a judgment or order is authorized, a party may lodge a draft minute of the judgment or order with the Registrar."
(Emphasis added)
Usually an entry of a judgment or order would be authorized where the Court makes an order or a judgment. In practice, the Registrar would not accept a document purporting to be an order or judgment where there is no record of the Court making the relevant orders and thereby authorizing their entry. But even in a case where the Court makes an order or a judgment, the Registrar is required by rr.12 and 13 to fix an appointment for its settlement before entering it unless the Court otherwise orders under r.14.
Since the inception of the formal Court system starting with those in England and elsewhere, it was and continues to be accepted nowadays that only the Courts can make orders and give judgment and none other. The exceptions would be limited and where the rules of a specific court permits the Registrar of the Court to sign judgment or orders in matters of consent or straightforward default judgments. An example of that happening is in the case of Drew v. Towers Investment Pty Ltd [1973] PNGLR 450, the relevant part of which is cited by the Supreme Court in its judgment in Simon Mali & Ors. v. Independent State of Papua New Guinea (03/04/02) SC690 at 10 – 11 in the following terms:
"The facts as to the making of the order for directions appear from the affidavit by the plaintiff’s solicitor, Mr Andrews, who deposes that shortly before appearing before the Registrar, and acting in accordance with customary practice in such matters, he telephoned Mr Train, a partner in the firm of solicitors for the defendants, that he then attended him in his office, where in Mr Andrew’s presence, Mr Train signed the foot of a draft order, under the words "I consent to the within order". Shortly afterwards Mr Andrews attended the office of the Registrar handed him the proposed order signed by Mr Train and indicated that the plaintiff also agreed to the proposed order, whereupon the Registrar sealed an engrossed copy of the said draft order without any alteration."
(Emphasis supplied)
If this is what happened in this case, the onus was on the respondents, who are defending the certificates of judgment to prove it but they did not. It is now doubtful whether a person other than a judge can make orders in the National and Supreme Courts. The Supreme Court judgment in The Honourable Andrew Baing & The State (23/02/2000) and PNG National Stevedores Pty Ltd & BSP (23/02/2000) SC672, made that clear.
On the facts before me in the present case, I find that the Court did not make any orders for any liquidated amount, be it the K20,250,000 in question or something other than that. The certificates of judgments were filed merely based on an unspecified agreement of the parties. The evidence of the terms of the agreement are not before this Court. As such, the Court is not able to work out how the parties arrived at that figure, having regard to the particular pleadings and the damages originally claimed and still showing on the pleadings.
The amounts showing in the certificates of judgment represent a very substantial increase from the claim originally pleaded. The original amount pleaded as noted already was K2,148,834, so the amounts incorporated in the certificates of judgment increased the claim by about K18,102,834. There is no evidence of any amendment to the statement of claim endorsed to the writ of summons from the date of its filing to the date of the default judgment or sometime thereafter. Similarly, there is no evidence led by the respondents as plaintiffs in the main claim as to how they got to that substantial increase without first showing how they persuaded the State to agree to that substantial increase and secondly without amending the pleadings.
As I said in Coecon Limited (Receiver/Manager Appointed) v. The National Fisheries Authority of Papua New Guinea (28/02/02) N2182 (later cited and applied by the Supreme Court in Papua New Guinea Banking Corporation v. Jeff Tole (27/09/02) SC694), the default judgment was for the matters pleaded in the statement of claim as at the time of the entry of the default judgment. The respondents were therefore at no liberty without first amending their pleadings to get damages beyond the amounts they actually pleaded and default judgment entered for.
Clearly, there is no evidence of the Court or a judge to be specific, making an order for K20, 250, 000.00 or any other sum of money against the State. All we have are certificate of judgment filed purportedly based on an order made by the Court, when there was in fact no order of the Court.
There is no provision in the Rules that allows for and deals with certification of judgments against either the State or any other person. The legislation that does that is the Claims By and Against the State Act 1996. Mr. Kua of counsel for the applicants submits that ss. 12, 13 and 14 are relevant. On my perusal however, only ss. 13 and 14 are relevant. Section 12 provides for exemplary damages, default judgments and time stipulations for satisfaction of judgments in the context of exemplary damages. These are strictly speaking not issues before this Court. I consider only ss. 13 and 14 are relevant, which in relevant parts provide:
"13. No execution against the State.
(1) In any suit, execution or attachment, or process in the nature of execution or attachment, may not be issued against the property or revenue of the State.
(2) Where a judgment is given against the State, the registrar, clerk or other proper officer of the court by which the judgment is given shall issue a certificate in Form 1 to the party in whose favour the judgment is given.
14. Satisfaction of Judgment against the State.
(1) The certificate referred to in Section 13(2) shall be served on the Solicitor-General by—
(a) personal service; or
(2) The Solicitor-General shall, within 60 days from the date of service upon him of a certificate under Section 13(2), endorse the certificate in Form 1.
(3) Upon receipt of the certificate of a judgment against the State bearing the Solicitor-General's endorsement that judgment may be satisfied, the Departmental Head responsible for finance matters shall, within a reasonable time, satisfy the judgment out of moneys legally available."
(Emphasis supplied)
The provisions of s.13 are abundantly clear that, it requires no art of interpretation except to go by its plain and ordinary meaning, Internal Revenue Commission v. Dr. Pirouz Hamidian-Rad (22/03/02) SC692 at page 9. Subsection (1) of s.13 prohibits execution of judgments against the State in the normal way. Then subsection (2) provides for the way in which judgments against the State could be satisfied, which is by way of a certificate of judgment. Hence, it is clear to me that the purpose a certificate of judgment is in aid of getting a satisfaction of a judgment or order against the State. It does not itself constitute an order or judgment.
Subsection (2) of s. 13 also makes it clear that, before there can be an issuance of a certificate of judgment, there must first be a judgment against the State. After meeting that requirement, the certificate must be in the prescribed form, Form 1. A certificate of judgment in the prescribed form must then be served on the Solicitor General in the manner provided for in s.14(1). Once the Solicitor General receives the certificate, he may endorse it for payment. Upon receipt of an endorsed certificate of judgment, the Secretary for Finance must than endeavour to settle the certified judgment within a reasonable time from funds legally available.
Form 1 relevantly reads as follows:
"Form 1.—Certificate of judgment.
PAPUA NEW GUINEA.
Claims By and Against the State Act.
Sec. 13(2) Form 1.
CERTIFICATE of JUDGEMENT.
A.B. v. The Independent State of Papua New Guinea.
I certify that A.B., of, on 19, did obtain a judgment of the (name of court) in his favour, and that by such judgment the sum of K was awarded to him.
I certify that—
(a) the judgment may be satisfied
OR
(b) the State proposes to take further action in this matter and satisfaction of judgment cannot take place.
Dated ... 19 .
Registrar (or Clerk).
(Name of Court)."
The Form tries to give effect to the requirements under ss.13 and 14 of the Act. In so doing, it indicates to prerequisites. These are the entry of a judgment for a specific amount in Kina terms by the Court and an option for the State to satisfy the judgment or take other steps that may prevent satisfaction of the judgment. Thus, in my view, means no party is at liberty to take out a certificate of judgment for a certain sum of money against the State except upon meeting these two requirements.
In the present case, both of the certificates of judgment are defective because, they both have no Kina sum judgment or order on which they could stand. All we have is the order by consent of the parties of 21st April 2004, which does not include any specific order for a specific amount of money. Further, for the second certificate, there is no endorsement of it by the Solicitor General as required by s.14(2) of the Act. This adds to the defect that already exists. On these basis, the only conclusion open is that, the certificates of judgment remain invalid. With this in mind, I now turn to the question of correction under the slip rule.
Correction Under Slip Rule
Section 13(2) empowers amongst others the Registrar of the National Court to issue a certificate of judgment based on an order of the National Court. It therefore becomes a Court document closely connected to a court order. I therefore accept Mr. Kua of counsel for the applicants’ submission that, to the extent that a certificate of judgment is a court document, it is part and partial of the orders or judgment issued under the auspicious of the Court. I therefore, accept Mr. Kua’s further submission that, to the extent that the certificates contain an error on their face, it is capable of correction pursuant to O 8 r 59 of the Rules, which is also known as the "slip rule".
I have considered the respondents arguments that the relevant provision under the Rules for the purpose of the application before me should be O 12 r 8. This rule deals specifically with an application to set aside or vary an order already made as opposed to correcting a mistake or an error on the face of a judgment or order. The applicants correctly content for the reasons I have already covered that, they are not seeking to set aside an order or judgment made by the Court. Rather, they are seeking a correction of two certificates of judgment issued purportedly based on an order or judgment that does not exist. Hence, O 12 r 8 is not the correct provision but O 8 r 59 is.
Order 8 r.59 reads in relevant parts:
"59. Minute of judgment or order. (20/10)
(1) Where there is a clerical mistake in a minute of a judgment or order, or an error in a minute of a judgment or order arising from an accidental slip or omission, the Court, on application by a party or of its own motion, may, at any time, correct the mistake or error.
(2) Rules 56, 57 and 58 do not apply to a correction made under Sub-rule (1)."
(Emphasis added)
Counsel for the applicants drew my attention to the case of Orogen Minerals Limited v. Internal Revenue Commission (26/09/03) N2464, per Sakora J., as a case on point. His Honour held and I agree that the intention of this rule is to correct errors or omissions in a judgment or order with a view to setting the record straight. It follows therefore that, it was not the intention of the rule to give someone a second or third chance by coming back to the Court repeatedly after exhausting all other avenues only because one is not happy with the result, and thereby use the rule to prevent or prolong the enforcement of orders.
A long list of other Supreme and National Court judgments such as the one in Richard Dennis Wallbank and Jeanette Minifie v. The Independent State of Papua New Guinea [1994] PNGLR 78, strengthen this position. In that case, the Supreme Court at pages 100 – 101 of its judgment referred to the Australian High Court decision of Autodesk Inc. v. Dyason (No.2) of (1993) 67 CLR 270 where Mason CJ., at page 302 said the following:-
"But these statements do not exclude the exercise of jurisdiction to re-open a judgment which has apparently miscarried for other reasons, at least when the orders pronounced have not been perfected by the taking out of formal orders. So much was acknowledged by Brennan, Dawson, Toohey and Gaudron JJ. In Smith v N.S.W Bar association (8) when their Honours said: ‘If reasons for judgment have been given, the power is only exercised if there is some matter calling for review.’ It is sufficient to give three examples. In re Harrison’s Share under a Settlement (9), orders were set aside following a decision of the House of Lords which overruled authorities on the basis of which the orders had been made. In New South Wales Bar Association v. Smith (10), the New South Wales Court of appeal reconsidered orders previously made in view of an argument that the Court had mistakenly assumed that particular evidence had not been given at earlier hearings (11). And, in Pittalis v Sherefettin (12), a judge recalled orders the day after they were made upon determining that he had ‘erred in a material matter in his approach to the case’ (13).
These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court, nor is to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and a misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide, a backdoor method by which unsuccessful litigants can seek to re-argue their cases."
The Court then at p.101 found these apposite and adopted them with one proviso. The provision was that, the Court should only consider an application under the slip rule where there has been a mistake which could be said to be little short of extraordinary and which affects an unsuccessful party. The Court was also of the view that, the public interest in the finality of civil litigation must preclude all but the clearest "slip" error as a ground to re-open. The most recent Supreme Court decision in Re Nomination of Governor–General; Application by Sir Pato Kakaraya (No 2) (18/06/04) SC752 noted this and endorsed the principles in question. In so doing, it acknowledged a summation of the principles in the following manner by counsel for the Ombudsman Commission at pages 17 - 18:
"(1) There is a substantial public interest in the finality of litigation.
(2) On the other hand, any injustice should be corrected.
(3) The Court must have proceeded on a misapprehension of fact or law.
(4) The misapprehension must not be of the applicant’s making.
(5) The purpose is not to allow rehashing of arguments already raised.
(6) The purpose is not to allow new arguments that could have been put to the Court below."
Applying these principles to the present case, I note that, there is no contest that, there ought to be finality in this litigation. However, before that concept takes its proper effect, there are apparently two incorrect and mistaken certificates of judgment that have no foundation in an order or judgment in fact made by the Court. I find that, the certificates of judgments may have been issued on the mistaken believe or a serious misapprehension of what the Court may have ordered on the consent of the parties on 21st April 2004, its effect and or meaning and the relevant law and practice on the entry and certification of judgments against the State. This error or mistaken certifications have very serious financial consequences against the State, which represents the public at large. Unless corrected, the respondents would easily walk away with K20, 250,000.00 of public funds and thereby cause the people of PNG to suffer injustice.
The question then is, are the applicants responsible for the mistake, error or misapprehension resulting in the certificates of judgment? The issuance of the certificates of judgment were at the behest of the respondents notwithstanding the lack of any foundation in their pleadings, any specific order or judgment for the amounts in question, either after a hearing of the parties on the issue or with the specific consent of the parties on it. The only fault on the part of the applicants is either a deliberate or careless discharge of the powers and functions vested in Mr. Francis Kuvi, as acting Solicitor General who endorsed one of the certificates. I do not consider however that, this is sufficient to say that the error, mistake or misapprehension resulting in the certificates of judgment was that of the applicants making. Rather, they carelessly followed something set in motion by the respondents.
By this application, the applicants are merely trying to correct the apparent error on the face of the two certificates of judgment and therefore the Court’s record. They are not trying to raise any new argument before the Court that they ought to have put before it earlier. As noted already, there was no Court hearing where the applicants could have had that opportunity and thereafter a decision leading to the certificates of judgment. On same consideration, the application is not seeking to bring in an argument or point the applicants failed to put to the Court before the Court arrived at a judgment or order that does not exist.
Having regard to these observations, there would appear to be no impediment to this Court granting the relief the applicants seek, save only for one issue. That issue is the issue of delay raised by the respondents against the application, which I now turn to.
Issue of Delay
In support of their arguments, the plaintiffs through counsel point to the fact that a period of six (6) months have now lapsed since the issuance of the certificates of judgment. Apart from merely pointing this out, counsel for the respondent did not elaborate and show how or why the delay factor is critical in this case. Clearly therefore, the respondent was casually raising this point. Perhaps this is why it also received a casual response from the applicants.
Whatever the position is, I note that O. 8 r. 59 of the Rules provide that, the Court can correct the kind of slips covered in the foregoing, at any time either on the application of a party or on its own motion. Hence, the rule does not stipulate a deadline for such applications. Nevertheless, the concept of delay is a common issue that often arises in the context of applications for leave for judicial review, application for a set aside of a default judgment or for extension of time for a party to do or take certain steps the Rules of the Court or other Acts of Parliament stipulate.
Very recently in the case of Umapi Luna Pakomeyu & Ors. v. James Siai Wamo & Ors. (12/11/04) N2718, I consider the issue of delay in the context of an application for leave for judicial review. There, I noted that, the time limits for application for leave for judicial review under the Rules of the Court are capable of extension, conditional on provision of reasonable explanation. This ties in well with the clear law now that, the Court can dispense with strict compliance of the Rules in appropriate cases to do justice. This is because the Rules are there to only assist the parties to get to judgment on the merits of their case and not succeed purely on account of the rules: See Papua New Guinea Banking Corporation v. Jeff Tole (supra).
In the same judgment, Umapi Luna Pakomeyu & Ors. v. James Siai Wamo & Ors. (supra), I noted that prejudice occasioned by any delay is a relevant consideration. If the party opposing an application that is out of time can demonstrate a case of prejudice, that might serve as an impediment to the grant of the application. In that case, I found that the plaintiff did not provide any reasonable explanation for the delay and more importantly, I noted that, during the period of delay much had taken place and that a grant of the application and the relief sought would introduce chaos and affect good administration.
In the present case, if I were satisfied that, there was inordinate delay, the respondents would still have to satisfy the Court that, the delay has resulted in prejudice to them. The respondents have not established a case of prejudice because of the delay. The only thing that has happened seems to be the death of the original lead plaintiff Mr. Kaseng, who I note is still named as a plaintiff. This means the plaintiffs have not taken the necessary consequential steps under the Rules. Without those steps, the plaintiffs could not properly proceed to either enforce the judgment or take the next step in the proceedings.
In any case, I note that the error, mistake or misapprehension, the subject of these proceedings, resulting in the issuance of the certificates of judgment is so fundamental. Hence, in my view, the issue of delay should not step in the way of correcting that error or mistake to set the Courts record straight and to do justice in the public interest, which is one of the twin brothers to the need to ensure finality in litigation. In the absence of any evidence to the contrary, the only thing the respondents will or may have suffered, are costs, which is easily compensable by an order for costs. Besides, when the respondents do get to a judgment correctly, an order for interests, which the Court readily orders in a money judgment will cover the delay.
I note also that, the respondents through, Mr Parkop’s affidavit, say they have incurred debts that are now being called on. No details of these alleged debts are provided and the need or necessity for them. I notice this seem to be a common feature in some of the cases before the Court. They border on third parties funding the litigation which can not be permitted. If the respondents have suffered any prejudice, it is their own doing and should not operate against the Court exercising its power to correct an apparent error.
Summary
In summary, therefore I answer each of the questions raised in these proceedings as follows:
Orders
Based on the foregoing conclusions, I find that the applicants have made out their application and there is nothing preventing the grant of the orders sought by the applicants. I therefore make orders in terms of paragraphs 2, 3 and 5 wrongly noted as 4 in the notice of motion filed by the applicant on 22nd September 2004.
As for term 4, namely costs, I am not inclined to granting that order. The reason for this is simple. There is no evidence from the applicants that satisfactorily explains the delay in bringing this application. I am of the view that, if the applicants made their application much earlier, costs of the respondents seeking to get the purported judgment settled would have been avoided. In theses circumstances, it is only fair that the applicants should be ordered to bear the costs of this application and I so order.
Ultimately, therefore, I make the following orders:
________________________________________________________________________
Lawyers for the Applicants/Defendants: Posman Kua Aisi Lawyers
Lawyers for the Respondent/ Plaintiffs: Parkop Lawyers
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