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Babia v Kimas [2009] PGNC 260; N3940 (23 December 2009)

N3940

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 1058 OF 2005

BETWEEN

THOMAS BABIA
First Plaintiff

AND:

GREGORY BABIA, JOSEPH ABI, ALPHONSE PAHULI AND LAWRENCE TONTE for and on behalf of the CUSOTMARY LAND OWNER OF YAWHANG REEF (now reclaim) OF VANIMO, SANDAUN PROVINCE
Second Plaintiffs

AND:

MR. PEPI KIMAS, as the
SECRETARY FOR THE DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Defendant

AND:

DR. WARI IAMO,
AS SECRETARY FOR DEPARTMENT OF ENVIRONMENT AND CONSERVATION
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Kandakasi, J.
2009: 04th November
23rd December

JUDGEMENTS & ORDERS – Application seeking to set aside order dismissing proceedings – Effect of – No active file – Matter concluded – No foundation to file motion - Court functious officio – Court has no jurisdiction - Available remedy – Appeal or review.

Cases Cited:

Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 1) [1988-89] PNGLR 355
Melina Limited trading as CN Mercantile v. Fred Martens (2001) N2183.
Christopher M Smith v. Ruma Constructions Ltd (2002) SC695.
Bruce Tsang v. Credit Corporation [1993] PNGLR 112.
Peter Malt v. Dean Queen and Christian Union Mission Inc (2009) N3577.
William Powi (Acting Administrator for Southern Highlands Province) v. Southern
See Application by Wili Kili Goiya [1991] PNGLR 170; (1991) SC408.
TST Holdings Pty Ltd & another -v- Tom Pelis & Another (1997) SC534.
PNG National Stevedores Pty Ltd & Anor -v- Honourable Andrew Baing & The State (1998) N1705.
Highlands Provincial Government (2006) SC844.
Telikom PNG Limited v. Independent Consumer and Competition Commission and Digicel (PNG) Limited (2008) SC906.
Koitaki Farms Limited v. Kemoko Kenge and Other Squatters at Itikinumu (2001) N2143.
Kundu Consultants Limited v The Independent State of Papua New Guinea (2001) N2128.
Eki Investments Limited v. Era Dorina Limited (2006) WS No 1063 of 2003.
Makop On v. Billy Parako (2004) N2593.
National Capital District Commission v. Yama Security Services Pty Limited (2003) SC707.
Honourable Sir Julius Chan v. The Ombudsman Commission of Papua New Guinea (1999) SC607.
The State v. The Senior Stipendiary Magistrate of the NCD Court at Port Moresby; Ex Parte The Acting Public Prosecutor [1976] PNGLR 344.
Daniel Ronald Walus v. The State (2007) SC882.
Richard Dennis Wallbank and Jeanette Manifie v. The Independent State of Papua New Guinea [1994] PNGLR 78.
Motor Vehicles Insurance (PNG) Trust Limited v. Yama Security Services Limited (2009) SC1004.

Counsel:

C. Narokobi, for the Applicant/Plaintiffs.
No Appearance for the Respondent/Defendants.

23rd December, 2009

1. KANDAKASI J: This case raises an important procedural and jurisdictional point. It raises the question of whether the Plaintiffs/Applicants are entitled to file and move a motion on proceedings that have already been dismissed for want of prosecution. That necessarily raises the question of whether the Court has jurisdiction to entertain an application to set aside orders dismissing proceedings for want of prosecution.

Background Facts

2. The background facts giving rise to the issues before the Court is simply this. On 13th October 2009, this Court dismissed these proceedings for want of prosecution. The matter was listed for directions hearing on 13th October 2009. That followed a request from the Plaintiffs through their lawyer, Mr. C. Narokobi by letter dated 28th September 2009. By letter dated 9th October 2009, faxed by the Deputy Registrar, National Court, the Plaintiffs and their lawyers were informed of the listing of this matter for directions hearing on 13th October 2009. On 13th October when the Court eventually called the matter during directions hearing, neither the Plaintiffs nor their lawyers showed up. That caused the Court to dismiss the proceedings for want of prosecuting noting as it did that, the normal requirement in our jurisdiction as is elsewhere, is for the parties and their lawyers to wait on the Court and not vise versa. Also the Court noted that, ready adjournment of proceedings with no good cause has seriously contributed to a build up in backlogs for the Courts. Hence, the Court should be slow to adjourning except in cases where a case is made out in accordance with the accepted principles governing adjournment as enunciated in the case of Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others[1] and elaborated and followed in subsequent cases as in Melina Limited trading as CN Mercantile v. Fred Martens.[2]

3. Notwithstanding the above background, the Plaintiffs through their learned counsel, Mr. C. Narokobi argued that, neither of the parties appeared and asked for a dismissal of the proceedings. They also point out that, there was no order or direction which the Plaintiffs'' breached or failed to comply. Accordingly, he argued that the Court erred in dismissing the proceedings on its own motion, which it must now be corrected by having the orders dismissing the proceedings set aside. This gives rise to the issues before us which can be dealt with as one.

Whether the Plaintiffs are Entitled to bring their Application and Whether the Court has Jurisdiction to Entertain it?

4. Turning then to the question presented, I note that, the issue requires an examination and consideration of what is the effect of a matter being dismissed. It is well accepted that, there must be finality in litigation subject only to one''s right of appeal where that exists. There are at least three instances in which a matter or issue can reach finality. The first is where there is trial on the issue or in the substantive proceedings and a final decision is arrived at. The second is in cases where, parties fail to prosecute their proceeding without due diligence and a formal application is successfully made by the other party or parties which results in a dismissal of the defaulting party''s proceedings. The third and final instance is in cases where, a party fails to turn up in Court and or otherwise fails to comply with orders or directions of the Court intended to expedite the proceedings to a final determination and the Court ends up striking out or dismissing the proceedings. It does not really matter whether the Court arrived at the decision, dismissing or striking out the proceedings after having heard arguments from both parties, only one of the parties or on the Court''s own volition. The fact of the matter is that, the proceedings have been dismissed.

5. The decision of the Supreme Court in Christopher M Smith v. Ruma Constructions Ltd[3] offers us some assistance and guidance as to the consequence that should follow. There, application was successfully made for summary judgment resulting in the National Court signing judgment with damages to be assessed. The hearing proceeded ex parte, following the Respondent and its lawyer''s failure to turn up at the hearing despite being served with the application and having notice of the date of hearing. The Respondent then filed an appeal to the Supreme Court but subsequently discontinued it. It then filed an application seeking a set aside of the ex parte summary judgment, which went before a different judge of the National Court who heard it and upheld it on the basis that, there were serious questions of fact and law in issue which warranted proper hearing and determination.

6. Being aggrieved by the decision of the National Court, the Appellant appealed against the decision setting aside the ex parte orders. The Supreme Court quashed the decision of the National Court and effectively reaffirmed the ex parte summary judgment. That was on the basis that, the National Court did not have the jurisdiction to review its own decision in the guise of an application for set aside of an ex parte order. In so doing, the Supreme Court emphasized the point that, once a Court has decided on an issue, it cannot rehear the matter save only on appeal or review by the Supreme Court.

7. The Supreme Court, per Kapi DCJ, (as he then was) with whom, I agreed said:

""The approach taken by the trial judge with respect is fundamentally wrong. In essence the learned trial judge reviewed the decision of Woods J. The trial judge had no jurisdiction to do this under an application to set aside judgment under O12 r 8 of the Rules. This power belongs to the Supreme Court under the Supreme Court Act or s 155 (2) (b) of the Constitution"".

8. To emphasise the point that the Respondent should have appealed to the Supreme Court, His Honour referred to the Supreme Court judgment of Bruce Tsang v. Credit Corporation,[4] where the National Court''s decision to enter summary judgment was appealed to the Supreme Court under the Supreme Court Act. This reasoning and principle proceeds on the basis that, once a Court has come to a decision, it is final subject only to one''s right of appeal or review.

9. This does not undermine the National Court''s inherent jurisdiction to make orders to do justice in circumstances where there are no other remedies available and to review decisions. This jurisdiction is given to the National Court by the Constitution under section 155 (4), which is often taken as the ""last resort"" remedy. The provision in question gives concurrent jurisdiction to both the National and the Supreme Courts. However, as Makail AJ as he then was observed in Peter Malt v. Dean Queen and Christian Union Mission Inc,[5] these powers are in the nature of prerogative writs which are by their very nature supervisory powers exercisable over courts and tribunals below them. Thus, it is well settled law now that the Supreme Court has no power to review a decision of another Supreme Court.[6] In the same way the National Court cannot review a decision of another National Court except in circumstances where a judgment or order may be set aside pursuant to statute or common law. The power they have under this Constitutional provision is only to make orders that are remedial, adjectival as well as procedural in nature and there is a body of case law supporting this position.[7] Also as the decision in William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government[8] made it clear, this provision does not grant any right but provides a last resort hope only where there is no available remedy to enforce a substantive right or interest granted by a substantive law.

10. In the Peter Malt v. Dean Queen and Christian Union Mission Inc case, the Plaintiff applied for a set aside of an ex parte order which dismissed the proceedings for want of prosecution. There, His Honour, Makail AJ., correctly noted that, it was not a case of the Plaintiff having exhausted all the available remedies and that great injustice would occur if the ex parte orders were not set aside. His Honour came to that conclusion because; the plaintiff did not sufficiently demonstrate to His Honour''s satisfaction that, he had exhausted all available remedies or that he was left with no remedy.

11. I observe that, one of the available remedies was the Plaintiff''s right to appeal to the Supreme Court. Alternatively, if the Plaintiff was still within time in terms of the relevant provisions of the Frauds and Limitations Act 1988, to issue fresh proceedings since the dismissal order came not upon a substantive hearing and determination on the substantive merits or issues raised in the proceedings which could have given rise to a defense of res judicata.[9] The issuance of fresh proceedings would only be subject to meeting the costs of the defendant thrown away in defending the proceedings that were dismissed for want of prosecution.

12. Another case which arrived at a similar decision in refusing to entertain and allow for a set aside of an ex parte order dismissing proceedings for want of prosecution was the decision of Manuhu AJ, (as he then was) in Makop On v. Billy Parako.[10] In that case, one National Court judge dismissed an appeal ex parte the appellant. The appellant subsequently applied for a set aside of the dismissal order and consequentially a reinstatement of his appeal. Amongst the arguments advanced by the appellant, he pointed out that, the application leading to the order to strike out was not served.

13. The Court was in my view, correctly of the view that, that was of no consequence as the proceedings had already been struck out. The only remedies open to the appellant was a refilling of the appeal if he was within time or failing that, appeal against the decision of the National Court.

14. The foregoing decisions of the Supreme and the National Courts make it abundantly clear that, when a Court has decided to and a pronouncement has been made for a dismissal or strike out of any proceedings, whether inter parte or ex parte, that Court, however it is constituted, is without jurisdiction to review its own decision. At that stage of the proceedings, the Court becomes functious officio. This is because, by virtue of the dismissal or strike out order, the proceedings are at an end both from logical and legal view point. Hence, it has no foundation factually and legal to stand on.

15. It must be clearly understood that, orders dismissing or striking out proceedings are not similar and hence do not have the same effect as interlocutory orders made on the basis of interlocutory applications. For such orders are interlocutory by their very nature and do not affect or render none existent the substantive proceedings. By reason of that effect, the law states clearly that, no substantive relief can be sought and obtained out of an interlocutory application, but only orders that are facilitative of a proper hearing and determination of the substantive matter and or those that deal with any interim pressing issue, while awaiting a determination of the substantive proceedings.[11] It goes with saying more that; the substantive proceedings remain to be dealt with. Given that, it is clear law that, all interlocutory orders are open to set aside or variation by the same Court. [12]

16. In arguing effectively against the weight of the foregoing position at law with the backing of the various decisions of Supreme and National Courts, Mr. C. Narokobi, counsel, for the Plaintiff, drew the Court''s attention to the decision in Richard Dennis Wallbank and Jeanette Manifie v. The Independent State of Papua New Guinea,[13] and the cases following it. These cases however, concern the Court''s inherent power to correct an apparent error appearing on the face of the record of a court''s judgment, which has in time become known as the slip rule.

17. There has been much attempt made by many parties and their lawyers to use the slip rule to re-agitate and effectively re-argue their cases particularly before the Supreme Court. In that way, parties through the workings of the lawyers have been trying to have a second bit at the cherry in most cases, in a clear case of counsel trying to cover-up for their failures more than that of their client and in so far as the true intend and purpose of the slip rule goes, without any apparent error made by the Court appearing on the face of the record. The recent decision of the Supreme Court in the matter of Motor Vehicles Insurance (PNG) Trust Limited v. Yama Security Services Limited,[14] put all this unnecessary arguments and Court''s time wasters to rest by reinforcing the correct intent of the slip rule, which is only to correct apparent errors on the face of the Court''s record and nothing more.

Decision

18. The case before me is not a case of the Court making an error which is apparent on the face of the record or the decision of the Court, which requires correction through a correct and proper application of the slip rule. What is before us is a case of the Plaintiff and their lawyer failing to turn up in Court on the appointed time, after due notice of the appointment being communicated to them by the Court''s Registry. There was a clear case of want of prosecution there and then. When a matter has been listed for hearing, either for the substantive matter or for directions to lead to that, all parties and in particular a plaintiff is required to be in attendance with his lawyer, if legally represented. Where there is failure in that, the Court has powers to either dismiss the proceedings for want of prosecution or stay proceedings or adjourned the proceedings. In this instance, the Court decided to dismiss the proceedings.

19. Having regard to all of the foregoing, I am caused to arrive at the conclusion and a decision not to uphold the Plaintiff''s application and instead have it dismissed with costs against the Plaintiffs because:

(a) following the dismissal of the proceedings, the Court has become functious officio and is thus without jurisdiction to entertain and grant the application;

(b) the Plaintiffs have either of two remedies which, they have not exhausted, namely, lodge an appeal to the Supreme Court or, re-issue the proceedings; and

(c) this is not an appropriate case for the application of the slip rule in favour of the Plaintiffs.
_____________________________

Narokobi Lawyers: Lawyers for the Applicant/Plaintiffs
No Appearance for the Respondent/Defendants

^[1] (No 1) [1988-89] PNGLR 355.
^[2] (2001) N2183.
^[3] (2002) SC695.
^[4] [1993] PNGLR 112.
^[5] (2009) N3577.
^[6] See William Powi (Acting Administrator for Southern Highlands Province) v Southern Highlands Provincial Government (2006) SC844, for an authority on point
^[7] See Application by Wili Kili Goiya [1991] PNGLR 170; (1991) SC408, TST Holdings Pty Ltd & another -v- Tom Pelis & Another (1997) SC534 and PNG National Stevedores Pty Ltd & Anor -v- Honourable Andrew Baing & The State (1998) N1705.
^[8] (2006) SC844.
^[9] For authorities on point see: Telikom PNG Limited v. Independent Consumer and Competition Commission and Digicel (PNG) Limited (2008) SC906 Koitaki Farms Limited v. Kemoko Kenge and Other Squatters at Itikinumu (2001) N2143; Kundu Consultants Limited v The Independent State of Papua New Guinea (2001) N2128 and Eki Investments Limited v. Era Dorina Limited (2006) WS No 1063 of 2003
^[10] (2004) N2593; cited by Makail A.J.,with approval in His Honour’s decision in Peter Malt v. Dean Queen and Christian Union Mission Inc (2004) N2593.
^[11] See National Capital District Commission v. Yama Security Services Pty Limited (2003) SC707
^[12] For examples of authorities on point for this proposition see: The Right Honourable Sir Julius Chan v. The Ombudsman Commission of Papua New Guinea (1999) SC607, especially the joint judgment of Sheehan and Jalina JJ. The State v. The Senior Stipendiary Magistrate of the NCD Court at Port Moresby; Ex Parte The Acting Public Prosecutor [1976] PNGLR 344; Daniel Ronald Walus v. The State (2007) SC882.
^[13] [1994] PNGLR 78
^[14] (2009) SC1004.