|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS 832 OF 2015
BETWEEN:
NALI HOLE
First Plaintiff
AND:
HAMULE NGIAME
Second Plaintiff
AND:
ALLAN MANA
First Defendant
AND:
JOHN DEGE
The Managing Director
of National Housing Corporation Limited
Second Defendant
AND:
NATIONAL HOUSING CORPORATION LIMITED
Third Defendant
Waigani: Bre, AJ
2023: 27th September, 10th November
CIVIL PRACTICE AND PROCEDURE - Application to Set aside Summary disposal order – Withdrawn – Second application to set-aside – National Court Rules – Order 12 Rule 1 and Rule 8 – Section 155(4) Constitution - Jurisdiction -Finality of proceedings.
Cases Cited
Inugu v Maru [2019] PGSC 83; SC1873
Punagi v Pacific Plantation Timber Ltd [2011] PGSC 38; SC1153
Smith v Ruma Constructions Ltd (2000) PGNC 35; N1982
Wawoi Guavi Timber Company Ltd v Molu [2016] SC1514
Legislation
Constitution s155(4)
National Court Rules O12 r1, O12 r8(3)(a)
Counsel
Mr J Yawale, for the Plaintiffs
No appearance Defendants
RULING
10th November 2023
1. BRE, AJ: INTRODUCTION: The Application seeks to set aside two Court Orders one of 05 June 2019 and the other 25th May 2023. The 09 June 2019 Order dismissed the proceedings for want of prosecution due to no appearance while, the Order of 25 May 2023 granted leave to the Plaintiffs to withdraw their motion to set aside the orders of 09 June 2019 on the jurisdictional basis citing Thomas Barry v Joel Luma (2017) SC1639.
BACKGROUND
2. These Plaintiffs commenced this proceeding alleging fraud in the process of sale and transfer of title to property described as Section 72 Allotment 08 State Lease Volume 144 Folio 230 Kuku Place, Korobosea, NCD granted to First Defendant by the Third Defendant, National Housing Corporation.
3. This case arises from a number of proceedings instituted earlier. There were other related proceedings commenced in 2014 and 2015 which have been completed except for this proceeding.
4 In one of those related proceeding, OS 702 of 2014 Allan Mana v Nali Hole; the Court decided in favour of Allan Mana and found that there was no dispute in the title and that he was seeking to enforce his rights over the title. The court made obiter remarks that if the Plaintiffs were still aggrieved, they could file proceedings alleging fraud in the grant of the title. Hence, this proceeding was commenced. This decision is reflected in the reported decision SCA No. 89 of 2015 and SCA 90 of 2015 Hole v Mana (2016) SC1536.
5. On 13 December 2018 an order was made staying the progress of this proceedings until full payment of Allan Mana’s taxed costs in OS 702 of 2014.
6. On 13 March 2019 the Court adjourned the matter to 02 April 2019 and directed “parties to continue their settlement discussions and have them concluded well before the next return date and come ready to inform the Court of their agreement and the next steps to be taken.”
7. On 05 June 2019 his Honour Deputy Chief Justice Kandakasi summarily dismissed the proceedings for want of prosecution and failure to comply with directions. The Court Order of 05 June 2019 was issued ex parte and reads:
1. Pursuant to Order 10 r.9A (15) (2) of the Court Rules, this proceeding is dismissed for want of prosecution, a failure to comply with orders or directions issued by the Court to date and for failure to appear in Court today for or by the Plaintiff.
2. No order as to costs.
3. The time for the entry of these orders is abridged to take place forthwith upon the Court signing them."
8. On 26 April 2023, the Plaintiffs filed an application to set aside the summarily disposal orders of 05th June 2019. The application was moved on 25 May 2023 but withdrawn on jurisdictional grounds.
9. The Court Order of 25th May 2023 is in the following terms:
"1. The Plaintiff/Applicant is granted leave to withdraw his Notice of Motion filed on 26th April 2023 in view of the Supreme Court decision in the matter of Thomas Barry v Joel Luma (2017) SC1639.
2. Each party bear their own costs
3. The matter stands concluded by the Orders of 05th June 2019
4. The Court File shall be closed and archived(sic) forthwith
5. The time for entry of these orders is abridged to take place forthwith upon the Court signing the Orders. "
10. Counsel for the Plaintiffs submits he was not heard fully by the Court and given the withdrawal of the application, refiled this application on 14 September 2023, to set aside the ex parte orders of 05 June 2019 and 25 May 2023 and to have the proceedings reinstated pursuant to Order 12 Rule 1, Order 12 rule 8(3)(a) National Court Rules and Section 155(4) of the Constitution.
EVIDENCE
11. The Plaintiff relies on the:
i) Affidavit of Hamule Ngiame sworn on 26 April 2023 and filed on 9 May 2023, and
ii) Affidavit of Junior Yawale sworn on 13 September 2023 and filed on 14 September 2023.
SUBMISSIONS
12. Counsel for the Plaintiffs, Mr Yawale, submits that there was no delay in bringing the application on 25 May 2023 as the stay order of 13 December 2018 was in place to enable payment by the Plaintiff to the First Defendant of his taxed costs from proceedings arising in OS 702 of 2014. Mr Yawale submits the Plaintiffs have been slowly paying the taxed cost of K141,300.50 with K81,000.00 paid already and a balance of K60,300.50 outstanding.
13. Mr Yawale submits the Plaintiffs have a case on merit and have been actively litigating its case and defending themselves in the related proceedings. That the substantive proceedings raises serious issues of fraud in the process to grant title to the First Defendant and that they were not aware of the proceedings listed on 05 June 2019, resulting in the dismissal orders.
14. As to the case authority of Thomas Barry v Joel Luma, Mr. Yawale submitted the Supreme Court in Inugu v Maru [2019] PGSC 83; SC1873 (13 November 2019), Ango v Kaluvia [2017] PGSC 31; SC1628 (3 November 2017) and others hold the view that the National Court does have jurisdiction under Order 12 rule 8(3) to set aside orders made in the absence of a party.
15. He further submitted that an appeal to the Supreme Court could not be pursued because the grounds for the disposal could not be established as the Plaintiff was not present when the summary disposal order was made on 05 June 2019.
ISSUE
LAW
16. The Plaintiffs are relying on Order 12 Rule 1, Order 12 rule 8(3)(a) National Court Rules (‘NCR’) and Section 155(4) of the Constitution to reinstate proceedings.
Order 12 rule 8(3)(a) NCR reads:
“8. Setting aside or varying judgement or order.
(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.”
Order 12 Rule 1 NCR:
“1. General relief.
The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgement 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 judgement or order in any originating process.”
Section 155(4) of the Constitution:
4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
ANALYSIS
17. In considering the submissions of Counsel, I have had regard to the Affidavit material and caselaw referred, the reported decision of the Supreme Court in SCA 90 of 2015 - Hole v Mana (2016) SC1536 and the various Court Orders in this proceedings ordered at various times from 12 November 2018, 26 November 2018, 13 December 2018, 12 February 2019 and 13 March 2019. I note from these various Orders reference to Court directions for settlement. I also note from the Supreme Court decision the background concerning the various litigation concerning the title to the property and to those matters deposed to in Hamule Ngiame’s Affidavit.
18. The Plaintiffs are essentially requesting a re-hearing of their application of 25 May 2023 and requesting this Court to set aside the summary disposal Orders of 05 June 2019. Both relieves sought rely on whether this Court has jurisdiction and to exercise discretion on proper principles.
19. I will address the issue of jurisdiction by firstly considering the recent Orders of 25 May 2023. Mr Yawale submits that the application was withdrawn with leave of the Court and not fully heard hence, the Plaintiffs are entitled to re-file their application to set aside the summary disposal orders of 05 June 2019.
20. While that may be so, apart from granting leave to withdraw the Plaintiffs application, the Orders of 25 May 2023 in fact contain final orders upholding the summary disposal order of 05 June 2019 with clear terms to conclude and archive the Court file. See terms 3 and 4 of the Court Order of 25 May 2023. To me, this clearly reflects the Court’s decision to maintain the summary disposal orders after deciding that it had no jurisdiction to grant the relief sought to set aside the summary disposal Orders of 05 June 2019.
21. I have not been referred to any caselaw that authorises a re-hearing of an application to set aside an order. The Court’s power under Order 12 rule 8 NCR is to vary on terms or set aside an order. I find that neither of this was exercised by the Court in its Orders of 25 May 2023 as the Court treated the Order of 05 June 2019 as a final order and refused the application on jurisdictional grounds.
PGSC 83; SC1873 (13 November 2019) at [73] that once an application to set
aside an order is heard, it cannot be heard a second time.
" ... Once an application is made to the National Court pursuant to Order 12 rule 8(3) to set aside an ex parte order, and the Court makes its decision on that application, the process in Order 12 rule 8(3) is exhausted. If a plaintiff/applicant applies to the National Court to have those ex parte Orders set aside, any decision of the National Court in respect of that question is final within the terms explained in Punagi, and may be the subject of appeal to the Supreme Court without leave. "
(emphasis mine)
23. In Wawoi Guavi Timber Company Ltd v Molu [2016] SC1514, the Supreme Court described the process in Order 12 rule 8 NCR as an alternate to appeal. However, once that is exercised it cannot be exercised again.
24. Counsel’s submissions focused on jurisdiction and in countering Thomas Barry v Joel Luma with other case authorities and did not address the issue that I am faced with on whether the order of 25 May 2023 is in effect a final decision made on the Plaintiff’s application especially given terms 3 and 4 of the Order.
25. To my mind, the Order of 25 May 2023 is a final order on the set aside application filed by the Plaintiffs on 26th April 2023. In Punagi v Pacific Plantation Timber Ltd [2011] PGSC 38; SC1153 (6 December 2011), the Supreme Court applied the ‘order’ approach and held that for purpose of seeking leave to appeal in the Supreme Court, an order made in interlocutory proceeding dismissing proceedings for want of prosecution was a final order as it finally determined the matter between the parties and leave to appeal to the Supreme Court was not necessary.
26. Further, Mr Yawale did not address the express nature of the final Orders finality orders contained in terms 3 and 4 of the Orders of 25 May 2023 and the issue of non-compliance raised by the Court Orders of 05 June 2019 pertaining to settlement. This ignores the final nature of the Order of 25 May 2023.
27. I am also reminded by the Supreme Court's caution in Smith v Ruma Constructions Ltd (2000) PGNC 35; N1982 (02 August 2000) for a National Court to consider the principles in exercising discretion to set aside, not to review the reasons for the decision made by the Court earlier to dismiss the proceedings.
28. The Court on 25 May 2023 decided it had no jurisdiction to hear the application. A rehearing of the application will mean a reconsideration of this Court’s decision of 25 May 2023 which to me, is threading into the review powers of the Supreme Court and one that I do not have the mandate to do so as I find that the set aside application was decided already on 25 May 2023.
29. The full terms of the Orders of 25 May 2023 clearly conclude the proceedings and confirm the disposal orders of 05 June 2019. It is a matter for the Supreme Court to review the decision of this Court on 05 June 2019, 25 May 2023 and in this application, should the Plaintiffs wish to appeal.
30. Given the foregoing considerations, I am of the considered view that, the Plaintiff’s application to set aside the summary disposal orders of 05 June 2019 was decided on 25 May 2023, the effect of which is that this proceeding was concluded and finally determined by this Court on 25 May 2023. I therefore, do not have any jurisdiction to re-hear an application under Order 12 rule 8 NCR.
31. Given my views on the finality of proceedings, the Court’s general relief powers under Order 12 rule 1 NCR and inherent jurisdiction under Section 155(4) Constitution cannot be exercised as these provisions apply when the proceedings are still current at ‘any stage’ of the proceedings or where there is a primary right which is now no longer in existence due to the finality of the proceedings. See Paiko v Mondoro [2022] PGNC 382; N9934 (28 September 2022) and Sanu v Tuke [2020] PGNC 15 and N8187 (24 January 2020) [39-42].
32. The issue of procedural fairness raised by the Plaintiff is an important issue that can be raised on appeal to the Supreme Court and given the recent full court decision in Cragnolini v Tasion and Leia (2023) SC2464, should the Plaintiffs wish to so appeal.
33. Considering my views, it is not necessary to address the second relief to set aside the original summary disposal Order of 05 June 2019 nor to address the issue of jurisdiction.
34. For the foregoing reasons, the Plaintiffs’ application is refused.
CONCLUSION
35. The Orders of 25 May 2023 affirms the Order of 05 June 2019 to dismiss the proceedings for want of prosecution. The terms of the Court Order of 25 May 2023 are final Orders. There is no power to re-hear an application to set aside final Orders. The Orders of 25 May 2023 and 05 June 2019 remain and effectively dismissed the Proceedings. The appropriate remedy available to the Plaintiff is to appeal to the Supreme Court, if they so wish to appeal.
COST
36. Costs are discretionary. Given the circumstances of the application, the nature of the substantive proceedings and the Plaintiffs’ position in still paying taxed costs from a previous related proceeding in OS 702 of 2014, I make no order on costs. Each party bears its own costs.
ORDER
37. The formal Orders of the Court are:
Ruling Accordingly.
_______________________________________________________________
Haiara's Legal Practice: Lawyers for the Plaintiff
Allan Mana: First Defendant in Person
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2023/408.html