Morobe Provincial Government v Tropical Charters Limited and Francis Tanga - Chairman of National Land Board and Raka Kavanar as Registrar of Land Titles and Dr Puka Temu - Minister for Lands & Physical Planning and the Independent State of Papua New Guinea (2010) N3977

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, J
• Judgment Date: 22 March 2010
• Court: National Court
• Citation: (2010) N3977
• Docket Number: OS. NO. 141 OF 2008
• Year: 2010
• Judgement Number: N3977

Full Title: OS. NO. 141 OF 2008; Morobe Provincial Government v Tropical Charters Limited and Francis Tanga - Chairman of National Land Board and Raka Kavanar as Registrar of Land Titles and Dr Puka Temu - Minister for Lands & Physical Planning and the Independent State of Papua New Guinea (2010) N3977

National Court: Kirriwom, J

Judgment Delivered: 22 March 2010

N3977

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 141 OF 2008

BETWEEN:

MOROBE PROVINCIAL GOVERNMENT

Plaintiff

AND:

TROPICAL CHARTERS LIMITED

First Defendant –

AND:

FRANCIS TANGA-CHAIRMAN OF NATIONAL LAND BOARD

- Second Defendant –

AND:

RAKA KAVANAR AS REGISTRAR OF LAND TITLES

- Third Defendant –

AND:

DR PUKA TEMU – MINISTER FOR LANDS & PHYSICAL PLANNING

- Fourth Defendant –

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

- Fifth Defendant –

Lae: Kirriwom, J

2010: 18 February and 22 March

PRACTICE AND PROCEDURE – Pleadings - Amendment – Leave to amend pleadings – Statement in Support of judicial review – Whether amendment justified – Whether amendment crystallized controversy between parties – Whether amendment appropriate – National Court Rules, Order 8 rule 50(1) &(2) & Order 16, rule 3.

Facts

On the eve of the trial in a judicial review application where the Applicant was seeking orders in the nature of certiorari for the Court to quash the decision of the National Land Board that granted a lease over a property in Lae to the First Defendant (the Respondent herein) and the subsequence issuance of the Title Deed by the Registrar of Title on unspecified grounds, the Plaintiff sought to amend its pleadings by removing some paragraphs in a statement in support and substituting them with new ones as well as pleading completely new facts that had the effect of changing the entire character of the proceeding, etc..

Held: (1) Application for leave to amend the pleadings in the statement is refused.

(2) Amendment would not clarify or crystallize real issues in the trial;

(3) Amendment gives rise to new issues for which leave was not sought and granted for judicial review application and as such would further prolong hearing of the case causing undue hardships, delay and injustice to the First Defendant.

(4) Application for amendment brought in the circumstances is not made in good faith.

Detailed reasons and facts are in the judgment.

Cases cited:

1. Heinz v Pacific Foods Ltd (1999) N1867

2. George v Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 447

3. The Papua Club Inc v Nusaum Holdings Limited & Ors (2002) N2273

4. Onne Rageau –v- Chandoc Ltd & Os (2006) WS. No. 1672 of 2002

Counsel:

J. Haiara, for the Applicant/Plaintiff

E. Mambei, for the First Defendant

REASONS FOR DECISION

22 March, 2010

1. KIRRIWOM J: This is an application for leave to effect substantial changes by way of amendment to a document that forms part of a cluster of documents filed in Court in an application for leave to apply for judicial review and relied upon for the judicial review application itself, namely the statement in support or statement supporting the originating summons and providing background information, the grounds for the review application and the relief sought.

2. As required under Order 16, Rule 3 of the National Court Rules, the application to the National Court under Order 16 for leave to apply for Judicial Review is made by originating summons, a statement setting out the name and description of the applicant, the relief sought and the grounds upon which that relief is sought and the application is made ex parte.

3. In this case leave had been granted and the matter is set down for substantive trial and instead of proceeding with the hearing the Plaintiff sought an adjournment which had been granted and is now asking the Court for leave to make changes in the statement in particular as to the relief sought and the grounds upon which that application is made.

RELIEFS SOUGHT IN NOTICE OF MOTION

4. Set out below are the reliefs that the plaintiff’s motion seeks:

2. Pursuant to National Court Rules Order 16, Rule 6(2) the Plaintiff be granted leave to amend the Statement in the form annexed to the Affidavit of Justin Haiara sworn 16TH February 2010 as annexure marked with letter “A”.

3. Pursuant to National Court Rules Order 1, Rule 15(1) operation and effect of the Orders 2 and 5 of His Honour Gabi, J made on 10th December 2009 be extended and the trial date set for 17th and 18th February be vacated and matter be allocated a new trial date with fourteen (14) days or any other date convenient to the Court.

4. Pursuant to Order 12, Rule 1 and section 155(4) Constitution the current Chairman of the PNG Land Board, the Chief Physical Planner, John Ofoi, the Surveyor General together with the Defendants produce to the Court through their respective Verified Affidavits filed in Court within seven (7) days from the date of these Orders the documents enumerated in the Lists of Documents filed on 2nd February 2010.

1. The Register of Titles, Chief Physical Planner and the Surveyor General make available for inspection by the Plaintiff and their lawyers file for Allotment 53, Section 27, Lae, Morobe Province and Survey File No. 11766E and Survey Plan Cat. No. 31/1266 for Section 27 Allotment 53, Lae and if the file could not be located file verified affidavits explaining what has become of the documents and the file.

6. The Private Surveyor Pheneas Aulo file a Verified Affidavit explaining his involvement in the survey for Section 27, Allotment 43 and in particular explain whether or not he relied on a properly approved subdivision and rezoning permission from the Morobe Provincial Physical Planning Board to conduct survey of the area leading to the product survey Plan Cat No. 31/1266 and if so annex copies of the National Physical Planning or Provincial Physical Planning Board approval for rezoning and subdivision to his affidavit together with copies of the detailed survey of the land done by him.

5. I am only going to deal with the application for leave to amend the statement in support of the judicial review application which is paragraph 2. Paragraph 3 has been heard and determined by Gabi J who vacated the trial dates in February and re-fixed the matter to come before him in the April sitting of the civil court in Lae. Whatever the practical utility of this application remains questionable as I cannot see the real value of this statement in a normal pleading.

AFFIDAVIT IN SUPPORT OF MOTION

6. Be that as it may, in moving this motion, the Plaintiff relies on the affidavit of Justin Haiara sworn 16 February 2010 and affidavit of Kitan Ngomba sworn 13 February 2010. Justin Haiara’s affidavit deposes to the following:

1. I am a partner of the firm Steeles Lawyers, Lawyers for the Plaintiff. As such I am authorized to depose to the content of this my affidavit on these premises.

2. Most of the relevant facts and information required to plead the materials facts were not available when the initial statements were drafted. These facts and information were uncovered only during the course of getting prepared for the trial of this matter as demonstrated by various deponents of affidavits filed in these proceedings.

3. Accordingly, the statements need to be amended so as to ensure that the pleadings accord with materials facts at hand and uncovered so far. The amendment sought is a necessary amendment. Annexed hereto and marked with letter “A” is the true copy of the draft statement with the proposed Amendments underlined in red.

PROPOSED AMENDMENTS

7. Annexure “A” in Justin Haiara’s affidavit is reproduced below setting out those paragraphs commencing from (b) onwards that are proposed as amendments in the reliefs sought by underlining (addition) or straight line through (deletion):

a. An Order in the nature of Certiorari to move the National Court to quash the decision made by the Second Defendant to approve the grant of the title of Land described as: Volume 14, Folio 61, Allotment 53, Section 27, Lae to the First Defendant and subsequently entered on the 10th July 2007 by the Third Defendant is illegal, invalid and void for all purposes.

b. A declaration that the Plaintiff in all the circumstances and for all intents and purposes is the registered proprietor of the land described as Volume 14, Folio 61, Allotment 53, Section 27, Lae

c. A declaratory order that the Light Industrial Lease granted to the First Defendant was done in breach of Section 67, Land Act 1996 and therefore null and void.

d. A declaratory Order that the Secretary for the Department of Lands erred in law in advertising the land Section 27, Allotment 53 for development as Light Industrial Lease pursuant to Section 65 of the Land Act 1996 when the land was not rezoned and properly available for development contrary to Section 67 of the Land Act 1996.

e. A declaratory Order that Morobe Provincial Physical Planning Board had not approved any rezoning or planning permission to rezone the area described as Section 27, Allotment 53 from open space to Light Industrial,...