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Yonge v Kakaraya [2005] PGDC 102; DC291 (11 August 2005)

DC291

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 695 OF 2005

BETWEEN

Philip Yonge
Complainant

V

Joestte Kakaraya
First Defendant

National Housing Commission
Second Defendant

Port Moresby: Bidar, Pm
2005: 11th August

District Court – Practice and Procedure -
Application by Notice of motion to set aside interim orders of this Court -
Principles- District Court Act (Ch No 40) S. 25

Counsel
First Defendant Appeared In Person
Applicant Appeared In Person

RULING

11th August, 2005

BIDAR PM: On 8th July, 2005 the First Defendant filed a notice of motion seeking the following orders:

"1. The interim orders dated 3rd March, 2005 be set aside.

2. The whole proceedings be dismissed for abuse of process

3. The Court Orders in proceedings DC No. 623 of 2004 be uplifted and joined to this proceeding and enforced

4. The Complainant vacate the property described as Section 23 Allotment 3, Flat A, Granville with-in 48 hours.

5. Alternatively, the Complainant deposit K20 000.00 as security for outstanding rentals and arrears owing to the Second Defendant on account of the First Defendant

6. Cost on full indemnity basis

7. Any further or other orders the Court deems fit"

To understand the orders sought by Defendants it is necessarily to state the background to these proceeding which leads to seeking of these orders.

On the 3rd of March, 2005, Complainant filed summons upon Complainant against the Defendants. The Complaint is worded in these terms:

"1. That I have been occupying section 23 allotment 3, Flat 1A Granville Paga Hill, Town since 24th October 2001.

2. By an understanding as between the parties, the interest in the premises will be passed onto me at a later date upon which I signed the tenancy.

3. The First Defendant than acquired another National Housing commission property at East Boroko with her husband.

4. Based on the understanding in Clause 2 above I moved onto the property and developed it over these years. I have spent about K10 000.00 in improvement to the property.

5. I have requested that the Defendant honour their undertaking to pass on the property interest to me but without success.

6. The Defendants particularly the First Defendant unreasonably harassed me and my family in the premises.

He seeks order of this Court to enforce the undertaking by the Defendants to pass interest in the property to him, damages or refund of monies spent on the property.

There was similar proceedings under DC 623 of 2002 was dealt with by this Court on 17th February 2005. His Worship Mr. Gauli ordered the ex arte orders made on 24th February 2004 against the Defendants beset aside. The entire proceedings filed was struck, out as having no cause of action against the Defendants costs were awarded to the Defendants.

This proceedings DC 695 of 2005 filed on 3rd March 2005, where interim restraining orders were obtained, was re-institution of the same proceedings. In other words, the current proceeding pleads no reasonable cause of action at all.

I have heard both parties in this matter in relation to orders sought by the Defendants. Upon reading the affidavit in support of the orders sought as well as having heard the complainant. I am unable to be satisfied that there, is a cause of action to pursue. In fact Complainant has refiled the same proceeding which was struck out on 17th February 2005. In my view it is a blatant abuse of the process of Court.

I therefore, grant the motion filed by Defendants on 11th July 2005.

I make the following Orders:

1. The interim ex parte order dated 3rd March 2005 is set aside

2. The entire proceedings is dismissed for abuse of process of Court

3. The first Defendant shall have her cost on full indemnity basis

In Person: Complainant
In Person: Defendant