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Kawage v Ane [2022] PGNC 402; N9878 (3 August 2022)

N9878

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 93 OF 2021

BETWEEN:
MECK KAWAGE
Plaintiff

AND:
ALA ANE – In his capacity as the Acting Registrar of Titles of Department of Lands & Physical Planning
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND:
JEB LIMITED
Third Defendant

Waigani: Dingake J
2022: 03^rd August

PRACTICE AND PROCEDURE – motion by third defendant to dismiss plaintiff’s proceedings for being an abuse of process as per Order 12 Rule 40 (1) (a) (b) & (c) of the National Court Rules – third defendant does not file any supporting affidavit for his motion – instead he choses to rely on another affidavit filed earlier – whether the third defendant’s Notice of Motion is defective for offending against Order 4 Rule 44(1) of the National Court Rules - Order 4 Rule 44(1) of National Court Rules requires that the affidavit upon which the Third Defendant relies upon for the relief sought should have been filed at the same time with the Notice of Motion – third defendants reliance on earlier affidavits amounts to an ambush, and an ambush takes a party by surprise and it is unfair to do so - Third Defendant’s Notice of Motion in so far as it was not supported by any affidavit at the time it was filed is defective and is liable to be dismissed with costs

Counsel:

Mr. Adam Token, for the Plaintiff.
Mr. Hezron Wangi, for the First & second Defendants
Mr. Harvey Maladina, for the Third Defendant.

03^rd August, 2022

1. DINGAKE J: This is my ruling with respect to the propriety of the Notice of Motion filed by the Third Defendant on the 25^th of July, 2022, (document # 28) following the Plaintiff’s objection that the said Notice of Motion is defective as it is not supported by any affidavit as required by Order 4 Rule 44 (1) of National Court Rules.
2. The Third Defendant’s motion is brought in terms of Order 12 Rule 40 (1) (a) (b) & (c) of the National Court Rules. It seeks to dismiss the entire proceedings brought by the Plaintiff as being an abuse of court process.
3. When this matter was called for hearing Mr. Maladina, learned counsel for the third Defendant, informed the court that he will not be relying on the affidavit served on the Plaintiff on the 31^st of July, 2022, and filed with the court on the 1^st of August, 2022. Mr. Maladina indicated that for the aforesaid Notice of Motion he will rely on the affidavit of Ms. Margaret Brown (Document#17). The said affidavit was filed on the 25^th of March, 2022.
4. Mr. Token, learned counsel for the Plaintiff, argued that the Third Defendant’s Notice of Motion is defective for offending against Order 4 Rule 44(1) of the National Court Rules. He complains that he has been ambushed as he did not know on what basis the Third Defendant would be relying on for the relief sought.
5. Order 4 Rule 44 (1) of the National Court Rules provides that:

Where a motion is founded on facts or on facts and documents, unless the court otherwise orders, an affidavit setting forth those facts and having annexed to it those documents (if any) shall be filed with the notice of motion, and a copy of the affidavit shall be served on the parties sought to be affected by the motion with the notice of motion (emphasis mine).

6. Mr. Maladina, learned counsel for the Third Defendant, argues that the Third Defendant did not need to file any supporting affidavit together with the Notice of Motion on the 25^th July, 2022, and that the Third Defendant can place reliance on an affidavit of Ms Brown filed earlier on the 25^th March, 2022, because the Third Defendant had already given notice that he will rely on the evidence of Ms. Brown, pursuant to Section 35 of the Evidence Act.
7. I have considered the provisions of Order 4 Rule 44(1) and the submissions of the parties. I agree with Mr. Token, learned counsel for the plaintiff that the Third Defendant’s Notice of Motion offended Order 4 Rule 44(1) as it seeks to rely on an affidavit filed earlier.
8. Order 4 Rule 44(1) of National Court Rules requires that the affidavit upon which the Third Defendant relies upon for the relief sought should have been filed at the same time with the Notice of Motion.
9. It would be unfair to expect the Plaintiff to have guessed which of the affidavits already filed by Third Defendant will be relied upon for the relief sought in the Notice of Motion of the 25^th of July, 2022.
10. I therefore agree that for the Third Defendant to only inform the Plaintiff during the course of the hearing that it relies on earlier affidavits amounts to an ambush, and an ambush takes a party by surprise and it is unfair to do so.
11. In the premises the Third Defendant’s Notice of Motion dated 25^th July, 2022, in so far as it was not supported by any affidavit at the time it was filed is defective and is liable to be dismissed.
12. In the result:
    • (a) The Third Defendant’s Notice of Motion being defective is hereby dismissed with costs.
    • (b) Such costs to be agreed or` taxed.

_______________________________________________________________
Warner Shand Lawyers: Lawyer for the Plaintiff
No Appearance for the Defendants