N7090
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) No. 21 of 2018

BETWEEN
JACK YUILA, JOE SIGIMET & RONSON DUA & ANDREW JAMBI & MARTIN TUMABEN
AND
NEW BRITAIN PALM OIL LIMITED

AND 
DEPARTMENT OF LANDS AND PHYSICAL PLANNING

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA

Kimbe: Miviri AJ
2018: 26th January 

PRACTISE & PROCEEDURE - originating summons-replica of same matter-same issues-power of National court control procedure proceedings-duplication multiplicity of proceedings-abuse of process-res judicata estoppel-proceedings dismissed with costs.

Cases cited:

Aihi v The State (No1) [1981] PNGLR 81 
Ekepe v Gaupe [2004] PGNC 82; N2694 
In Supreme Court Reference No 3 of 2000; Special Reference under Section 19 of the Constitution by the Governor-General re Sitting Days of the National Parliament (2002) SC722 
Supreme Court Reference No 3 of 1999; Special Reference under Section 19 of the Constitution by the Ombudsman Commission re Sitting Days of the National Parliament (1999) SC628.
Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906)

Counsel:

F Kua, for Plaintiff
L Tunian, for First Defendant
No appearance for the Second & Third Defendants

					RULING 
 29th January, 2018 
1.	MIVIRI, AJ: This is the ruling of the court on an Originating Summons filed by the Plaintiffs seeking leave pursuant to Order 16 rule 3 of the National Court Rules, “NCR”. They also seek certiorari to quash the Notice to Quit issued by the Second Respondent giving them 60 days to vacate the property described as state lease portion 178. Further an order restraining the Respondents, all their agents and servants not to evict the Plaintiffs from the said land described as State lease portion 178 pending the hearing of the substantive application for judicial review. And that the Respondent was wrong in law in so acting against the plaintiffs.

2.	 This is the very same course of action that the same Plaintiffs now before me filed in Originating Summons (OS 777 of 2014) against the same Respondents seeking the very same orders which this court dismissed, ordered on the 10th November, 2017, and entered on the 26th November, 2017. It was inter parte hearing including submissions with extracts of arguments filed upon which this court made the decision with the orders dismissing the proceedings. The matter was properly before the court fully detailed out and exhaustively dealt with and settled on that level in law and no recourse is open either by the rules of court or the procedures of court: Ekepe v Gaupe [2004] PGNC 82 ; N2694 (13th October 2004). It is not an interim order and an application to seek variation or extension of the same Order 12 Rules 8 (3) (a), (4), (5) of the Rules.

3.	The Constitution provides that the National Court is a superior court of record. Subject to the role of the Supreme Court, it has an inherent power to review the exercise of judicial authority. It has an inherent power to make, in such circumstances as seem to it proper, orders in the nature of prerogative writs or such other orders as are necessary to do justice in the circumstances of a particular case. It is obliged, generally, to apply and enforce, as part of the underlying law, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England. (See Constitution, Sections 163(2), 155(3) (a), 155(4) and Schedule 2.2.)

4.	Therefore given the proper process for the Plaintiffs are to file an appeal in the Supreme Court within 40 days after the entry of the orders which has since expired on the 12th January, 2018. It is now 10 days outside that period allowed and the proper course is a review Aihi v The State (No1) [1981] PNGLR 81 (27th March, 1981) and on the basis of it file a motion to stay execution of the orders of this court pending the determination of the review. Even then the Plaintiffs must demonstrate some substantial injustice as manifest, or the case is of special gravity, the onus being upon the Applicant Plaintiffs to sway the court for review to be granted.

5.	There is nothing apparent or identifiable in law or fact to allow the matter commencement here because multiplicity of legal proceedings concerning the same issues will commit an abuse of process unless very good reasons are shown to justify it, Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008).

6.	In Supreme Court Reference No 3 of 2000; Special Reference under Section 19 of the Constitution by the Governor-General re Sitting Days of the National Parliament (2002) SC722, it was held by a 5:2 majority that the Court had already authoritatively determined many of the issues involving the same parties, not long before. The previous case was Supreme Court Reference No 3 of 1999; Special Reference under Section 19 of the Constitution by the Ombudsman Commission re Sitting Days of the National Parliament (1999) SC628. The majority therefore declined to answer many of the questions raised on the ground of res judicata. 

7.	In Supreme Court Review No 8 of 2003; Application by Anderson Agiru (2003) SC704, the Court rejected an application under Section 155(2) (b) of the Constitution for the review of the decisions of a leadership tribunal. The Court upheld the Public Prosecutor’s defence that the same facts, issues and arguments had been authoritatively determined in a previous case, Supreme Court Review No 13 of 2002; Application by Anderson Agiru (2002) SC686. The court whether it is the District court or the land court or the National court and for that matter the supreme court are creatures of statue and therefore jurisdiction is pursuant not without and which is reinforced by the rules of court.

8.	The simple fundamental is what Justice Injia (as he then was) said in Karl Paul & Aruai  Kispe and the Regional Manager PNG forest Authority Lae and PNG forest Authority (2001) N2085 delivered on 17th April 2001 in Lae, "The Court has wide powers to control the conduct of proceedings before it, subject of course, to jurisdictional limitations fixed by statute. It is in the inherent jurisdiction of the Court to take firm control of the proceedings to ensure that the business of the Court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case."

9.	The extreme of this exercise is demonstrated in Rooney No.2 Public Prosecutors v, [1979] PGSC 23; [1979] PNGLR 448 (11th September 1979). Extended from this is the very wide discretion vested in the Court by the National Court Rules to screen and weed out claims which do not disclose a reasonable cause of action, are frivolous and vexatious or an abuse of process of the Court (O.12 R.40) or the documents filed in court is scandalous, irrelevant or otherwise oppressive (O.2 R.29) or on the ground of irregularity. That discretion is normally exercised upon application by an interested party. Nevertheless, it goes without saying that the Court may exercise that discretion on its own initiative. It is open to the Court to raise and determine questions concerning the regularity (O.1 R.1-9) or competency of proceedings at any stage of the proceedings with or without application by an interested party.”

10.	And that I do so here because the plaintiffs cannot be allowed to mirror what has already been laid to rest by this court, res judicata is clear by the facts here and therefore the originating summons is not before the court and cannot be allowed and will be dismissed with costs to follow the event. As it is the conduct of the plaintiffs connected with the institution which has unnecessarily brought the defendant into the action (Sengero v Wenge, Governor Morobe Provincial Government [2001] PGNC 63; N2152 (6 August 2001), I consider the general rule that the costs follow the event that an unsuccessful party should pay the successful party’s costs. 

11.	  The Plaintiffs Originating Summons is dismissed as res judicata and abuse of process.

12.	Plaintiff is to pay costs of the defendant if not agreed to be taxed. 

Orders Accordingly.
__________________________________________________________________
Felix Kua Lawyers	: Lawyer for the Plaintiff Applicant
Lydia Tunian: Lawyer for the First Defendant