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Tribune Mount Kare Gold Ltd (formerly known as New Britain Lime &amp Cement Ltd) v Garry [2022] PGNC 115; N9530 (21 April 2022)

N9530

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 21 OF 2019

BETWEEN:
TRIBUNE MOUNT KARE GOLD LIMITED formerly known
as NEW BRITAIN LIME & CEMENT LIMITED
Appellant

AND:
JERRY GARRY in his capacity as the Managing
Director of the Mineral Resources Authority
First Respondent

AND:
STANLEY NEKITEL as the Registrar of Tenements
Second Respondent

AND:
GLOBAL MINING GROUP LIMITED (GMG)
Third Respondent

Waigani: Dingake J
2022: 21^st April

PRACTICE AND PROCEDURE - Order 4 Rule 49 – 8 – Failure to comply therewith – held application incompetent.

Counsel:

MS. Susie Gigimai, for the Plaintiff
Ms. Wilma Mai, for the First and Second Respondent
Mr. Ian Sheppard, for the Third Respondent

RULING

21^st April, 2022

1. DINGAKE J: By notice of motion filed with this Court on 21^st of February, 2022 (Doc.17), the Appellant approached this Court, praying that until the hearing and determination of the Appeal it has filed, the Mineral Resources Authority, its officers, servants and agents be restrained from taking any action intended or capable of advancing towards determination of the application by the Third Respondent for ELA 2429 appearing in the Register of Mineral Tenements maintained by the Second Respondent within the Mineral Resources Authority as that made by GMG Global Mining Group and filed on 18^th December, 2015, but falsely recorded as being purportedly filed on the 14^th of January 2016.
2. This application is made pursuant to Order 12 Rule 1 of the National Court Rules, and or this Court’s inherent jurisdiction under Section 155(4) of the Constitution.
3. The Third Respondent has raised a preliminary objection on the competency of the application. According to the Third Respondent, the Appellant fell into error or was wrong to bring this application under Order 12 Rule 1 of the NCR and/or Section 155(4) of the Constitution, as the correct Order to have utilized or invoked is Order 18 Rule 12(2).
4. The First and Second Respondents in effect also raise the same objection and contended that the Appellant’s motion is defective and should be dismissed as it fails to properly specify the Court’s jurisdiction for the relief sought.
5. In terms of Order 4 Rule 49(8), it is a requirement that there be a precise reference to the Court’s jurisdiction.
6. It must be noted that Order 12 Rule 1 is a general provision which may only be utilized in the absence of a specific provision governing a particular matter.
7. Order 8 Rule 12(2) (a) and sub-rule (b) provides that:

“(2) Motions.

(a) An application for stay of enforcement of order appealed from or any other interlocutory application may be made before the judge by Notice of Motion. (Mine emphasis)
(b) The practice and procedure for Motions shall be those applying to Motions under the National Court Rules.”

8. I agree with the Respondents that the correct Order to have invoked is Order 18 Rule 12 (2) as quoted above.
9. It follows in my view that since the Appellant failed to invoke the correct Order/Rule that anchors the application, the Notice of Motion is incompetent and is liable to be dismissed as such, as I hereby do.
10. Given my conclusion that the application is incompetent and liable to be struck out, it is not necessary to consider the merits of the application.
11. With respect to costs, the general rule is that costs follow the event and in this case there is no reason why this should not be so.
12. In the result, it is ordered that:
    • (a) The Appellant’s Notice of Motion filed on the 21^st of February, 2022, is incompetent and it is struck out with costs.

_______________________________________________________________
Fiocco &Nutley Lawyers: Lawyers for the Appellant
Allens Lawyers: Lawyers for the First and Second Respondents
Ashurst PNG Lawyers: Lawyers for the Third Respondent