OS No. 1058 OF 2005; Thomas Babia and Gregory Babia, Joseph Abi, Alphonse Pahuli and Lawrence Tonte for and on behalf of the customary land owner of Yawhang Reef (now reclaim) of Vanimo, Sandaun Province v Mr. Pepi Kimas, as the secretary for the Department of Lands & Physical Planning and Dr. Wari Iamo, as Secretary for Department of Environment and Conservation and The Independent State of Papua New Guinea (2009) N3940

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 23 December 2009
• Court: National Court
• Citation: (2009) N3940
• Year: 2009
• Judgement Number: N3940

Full Title: OS No. 1058 OF 2005; Thomas Babia and Gregory Babia, Joseph Abi, Alphonse Pahuli and Lawrence Tonte for and on behalf of the customary land owner of Yawhang Reef (now reclaim) of Vanimo, Sandaun Province v Mr. Pepi Kimas, as the secretary for the Department of Lands & Physical Planning and Dr. Wari Iamo, as Secretary for Department of Environment and Conservation and The Independent State of Papua New Guinea (2009) N3940

National Court: Kandakasi, J

Judgment Delivered: 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

(No 1) [1988-89] PNGLR 355.

1 and elaborated and followed in subsequent cases as in Melina Limited trading as CN Mercantile v. Fred Martens.

(2001) N2183.

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

(2002) SC695.

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...