N5317
 
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 391 OF 2012

BETWEEN:

SAMUEL AIYE NEMA
Plaintiff/Cross-Defendant

AND:

RURAL DEVELOPMENT BANK
LIMITED
Defendant/Cross-Claimant

Waigani: Hartshorn J.
2012: 22nd June
: 27th July
 
Application to dismiss proceeding - Order 12 Rule 40 – whether plaintiff estopped from bringing proceeding – doctrine of res judicata – principles considered – whether same issue determined in previous proceeding 

Cases cited: 

Herman Gawi v. png Ready Mixed Concrete [1984] PNGLR 1974
Yama v. PNGBC Ltd (2008) SC922 

Counsel:
 
Mr. J. Apo, for the plaintiff/cross-defendant
Mr. I. R. Shepherd, for the defendant/cross-claimant

27th July, 2012

1. HARTSHORN J: This is an application by the defendant the Rural Development Bank Ltd (RDB), to dismiss the proceeding pursuant to Order 12 Rule 40 National Court Rules, that RDB be granted an order for vacant possession of the plaintiff's property and that it be granted leave to issue a writ of possession.

2. The plaintiff Mr. Samuel Nema, commenced this proceeding in respect of his property. He seeks amongst others, an interim injunction to restrain RDB from selling the property, and that RDB's mortgage over the property be discharged.

3. RDB submits that pursuant to the doctrine of res judicata, Mr. Nema is estopped from bringing this proceeding as its cause of action is in essence the same as one in a previous proceeding between the parties that has finally been determined. This determination was first by the National Court which dismissed Mr. Nema's claim (WS 199/06) after a defended hearing and secondly by the Supreme Court which dismissed Mr. Nema's appeal from WS 199/06 also after a defended hearing.

4. In WS 199/06, the parties were Mr. Nema suing RDB and a second defendant who was the managing director and chief executive of RDB. That second defendant is not sued in this proceeding. The relief claimed in WS 199/06 included an interim injunction restraining the sale of the property and the discharge of the mortgage. So WS 199/06 and this proceeding concern the same parties, apart from the second defendant, the same property, the same mortgage and similar relief in respect of the mortgage and property.

5. Mr. Nema submits that as RDB, since the determination of WS 199/06, has advertised the property for mortgagee sale again, all previous actions taken by RDB to dispose of the property including WS 199/06, have now been superseded and the doctrine of res judicata does not apply.

6. Res judicata is a legal doctrine recognised in Schedule 2.8 (1) (d) Constitution. In the Supreme Court case of Yama v. PNGBC Ltd (2008) SC922, the Court referred to a decision of Bredmeyer J. in Herman Gawi v. png Ready Mixed Concrete (1983) unnumbered unreported, that considered the six probanda that must be established by the party setting up res judicata. They are:

a) was the earlier decision a judicial decision?

b) was the judicial decision pronounced?

c) did the judicial tribunal have competent jurisdiction?

d) was the judicial decision final?

e) did the judicial decision involve the determination of the same question?

f) are the parties the same?

7. From a perusal of the evidence filed on behalf of RDB I am satisfied that all but the fifth probanda are satisfied. Further consideration is required as to whether the judicial decision involves a determination of the same issue in this proceeding.

8. When regard is had to the pleading in the statement of claim, the first four paragraphs are substantially the same as the first pleadings in WS 199/06. The statement of claim then contains a recital of what occurred in WS 199/06 and the Supreme Court Appeal. In paragraphs 9 to 15 of the statement of claim there are pleadings to the effect that the property has been advertised for sale again and that because the National Court in WS 199/06 and the Supreme Court did not 'come up' with the exact amount owing, RDB should do so but has not.

9. In my view, no new or any cause of action is disclosed in paragraphs 9 to 15 of the statement of claim. The pleading concerns the same mortgage between the parties that has already been dealt with by the courts. As to the submission concerning the further advertisement of the property, the evidence given on behalf of RDB, which postdates the advertisement in April 2012, is to the effect that the purchaser of the property under a contract with RDB dated 23rd December 2005 is proceeding with the purchase but requires vacant possession. A letter from the lawyers for the purchaser dated 2nd May 2012 and a notice to vacate are also in evidence. This evidence is not contradicted by Mr. Nema. The argument of Mr. Nema that is based on a new advertisement has no substance given that the purchaser under the 2005 contract with RDB is proceeding with the purchase. This argument does not require further consideration.

10. I am satisfied that the pleading in the statement of claim, such that it is, concerns and is in essence the same as the cause of action in WS 199/06. The fifth probanda is satisfied. Consequently for the above reasons Mr. Nema is estopped from bringing this proceeding. This proceeding should be dismissed as an abuse of process.

11. As to the second order pursuant to Order 13 Rule 3 National Court Rules, that RDB be granted an order for vacant possession of the property and that it be granted leave to issue a writ of possession forthwith, this relief is also sought in the cross claim of RDB against Mr. Nema. I note that no defence has been filed to the cross claim by Mr. Nema. The evidence given on behalf of RDB is that a notice to quit addressed to Mr. Nema and other tenants was served by it being left on the property on 1st May 2012, but this notice has not been complied with. RDB is the mortgagee in possession and it is entitled to vacant possession. Leave to issue a writ of possession should issue.

12. As to costs being sought on an indemnity basis, I am not satisfied that RDB has sufficiently presented a case that such costs are justified.

Orders

13. The Orders of the Court are:

a) The claim of the plaintiff against the defendant in this proceeding is dismissed.

b) The cross claimant is granted vacant possession of the land known as Portion 2329 Bomana, National Capital District and is given leave to issue a writ of possession forthwith.

c) The plaintiff shall pay the costs of the defendant of and incidental to the plaintiff's claim against the defendant.

d) Time is abridged.

_____________________________________________________________
Ame Lawyers: Lawyers for the Plaintiff/Cross-Defendant 
Ashurst Lawyers: Lawyers for the Defendant/Cross-Claimant