PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 739 OF 2005

BETWEEN

TANGAN KANARI by his next of Kin ELIZABETH KANARI
Plaintiff

AND

AUGUSTINE WIAKAR
First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND

OIL PALM INDUSTRY CORPORATION
Third Defendant

Kimbe: Davani .J
2007: 19 & 20 April

Counsel
Mr Wagambie, for the first Defendant/Applicant
G. Linge, for the Plaintiff/Respondent

DECISION

20 April, 2007

1. DAVANI .J: Before me is Notice of Motion filed by M.S. Wagambie Lawyers for the first defendant/applicant (‘applicant’) seeking the following orders;

1.	That the entire proceedings be dismissed for failing to disclose a reasonable cause of action, for being frivolous and vexatious and for being an abuse of the process of court, application made pursuant to O. 12 r. 40 (1) (a) (b) (c) of the National Court Rules (‘NCR’);
2.	Alternatively, that the entire proceedings be dismissed for want of prosecution, application made pursuant to O. 4 r. 36 (1) of the NCR;
3.	Costs of the proceedings.

2. The application is opposed by the plaintiff through lawyer, Mr Linge.

3. In support of that application, Mr Wagambie relies on the affidavit of Augustine Wiakar sworn on 21st September, 2006. Mr Linge relies on the affidavit of Elizabeth Kanari sworn on 17 April, 2007.

Application for summary judgment

4. Mr Wagambie’s submission in relation to this are under several parts. These are;

1.	Lack of S. 5 Notice – He submits that the plaintiff did not give s. 5 Notice under the Claims By and Against the State Act. Therefore, the claim should be dismissed for there being no cause of action. Although Mr Wagambie may be correct, I note he does not seek these orders in his Notice of Motion i.e he does not specifically plead this as a remedy. If it were properly sought, then Mr Linge would have come to court armed with the necessarily materials to counter those submissions. I say this because I noted Mr Linge’s state of unpreparedness.

This claim was not sought in the Notice of Motion so should not be pursued, in fairness to the plaintiff.

2.	Plaintiff incorrect party suing – Mr Wagambie submits that this case concerns State Lease Portion 1357, Magigi, Talasea. (‘property’). He submits that the correct person to sue would be the Public Curator, as the owner of the property died intestate, Therefore the property, being a State Lease, now vests in the Public Curator. He cited s. 44 of the Wills Probate and administration Act (‘WPA’) which states that "until probate or administration is granted, the property of a deceased person vests in the Public Curator, in the same manner and to the same extent as formerly personal estate in England vested in the ordinary". (my emphasis)

In this case, based on the affidavit materials before me, there is a clear dispute as to who owns the property. Until that is rectified or resolved, s. 44 of the WPA does not apply. This is because s. 44 is specific that "…the property of a deceased person vests in the Public Curator". That submission must fail.

Mr Wagambie further submits in relation to standing that the plaintiff is not the legal owner, that she only has equitable interest in the property, therefore she should not be suing. The manner in which Elizabeth Kanari is suing is definitely open to challenge and must be corrected because Tangen Kanari is deceased.

As to whether she has equitable interest or not is a matter for the court to decide on at the appropriate time. But as to whether Elizabeth Kanari can sue as an individual because she has in interest in the property, is acceptable.

3.	Application to dismiss for want of prosecution – All applications must be supported by Affidavit material. In this case, the first defendant has not filed affidavit material supporting his application. The applicant asks that the court take judicial notice of the lack of action by the plaintiff and to dismiss the proceedings. It submits that, since the originating summons was filed on 26th July, 2005, nothing was done to progress the matter. O. 4 r. 44 (1) of the NCR states that where a motion is founded on facts, unless the court otherwise orders, an affidavit setting forth those facts shall be filed with the Notice of Motion and a copy of the affidavit shall be served on the party sought to be affected by the motion. In this case, I have not ordered otherwise, nor is there any order, ordering otherwise. (my emphasis)

5. Without an affidavit in support, this application must fail.

6. Having reviewed the above, I am of the view that the application must be dismissed. However, I note there are serious legal issues to be tried that cannot be raised on the present proceedings filed by the plaintiff. I note also that the State is named as second defendant. The State as I see it, is only a nominal defendant. Elizabeth Kanari or whoever will be suing, should seriously consider naming the Registrar of Titles and the Public Curator in these proceedings. This is because the Registrar of Tittles issued the original title. As for the Public Curator, he may wish to have a say in the deceased’s estate. It is better that he be named in the initial proceedings rather than later.

7. As to the original proceedings filed by Mr Linge, the originating summons seeks declaratory orders. The only time Declaratory orders or a Declaration or rights are sought on an originating summons is if the plaintiff claims he is clearly entitled to the remedies.

8. In this case, there are a lot of arguable and disputed issues raised by both sides in relation to ownership of the property. O. 4 r. 2 of the NCR is clear that proceedings will be commenced by originating summons only if;

(a)	the sole or principal question at issue is or is likely to be one of construction of an Act or an instrument or Deed or Will or some other question of law;
(b)	in which there is unlikely to be a substantial dispute of fact;
(c)	and there is no other mode of making an application.

9. But I have seen that there is substantial dispute in relation to ownership to the property. The originating summons filed by Mr Linge is definitely not the correct mode.

10. But instead of dismissing proceedings, the court can exercise its powers under s. 155 (4) of the Constitution to rectify these anamolies by ordering an amendment to these proceedings.

11. It can do that by converting the originating summons to pleadings.

12. But I wish to emphasize here that, with respect, too many lawyers in this country file originating summons in very disputed proceedings, hoping that the court will entertain their claim and in the process, misleading their clients and giving them high hopes, all for naught. A lawyer’s duty is to ensure that his client is properly advised.

13. As to costs, because I dismissed the motion and because the proceedings filed by Mr Linge are erroneous, each party shall pay their own costs.

14. In exercising discretionary powers available to me under s. 155 (4) of the Constitution, I order the following; 

1.	The motion filed by the first defendant is dismissed;
2.	These proceedings are converted to WS proceedings;
3.	Within 30 days from today, the plaintiff shall file and serve a statement of claim naming the correct parties and shall also set out therein, his or her claim and the relief sought;
4.	Within 20 days after receipt of the statement of claim, the defendants shall file and serve their Notices of Intention to Defend, Defence and Cross-Claim (if any);
5.	Thereafter, the pleadings shall take their course;
6.	Each party shall pay their own costs of the application;
7.	Time is abridged to time of settlement to take place forthwith.

Linge Lawyers	: Lawyer for the Plaintiff/Respondent
M.S. Wagambie Lawyers: Lawyer for First Defendant/Applicant