N7451
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 1045 OF 2012

BETWEEN:
TIRUKES KAPERA
First Plaintiff

AND:
NATIONAL AIRPORTS CORPORATION LIMITED
Second Plaintiff

AND:
LUKE AIPU
First Defendant

AND:
ROMILLY PAT KILA, Deputy Secretary, Department of Lands & Physical Planning
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Goroka/Kainantu: Yagi J
2018: 20 April

PRACTICE AND PROCEDURE – Application to dismiss proceeding – failure to comply with Court directions - National Court Rules, Order 10 Rule 9A(15)(1)(a) and (2)(c) – failure to appear at directions hearing – Order 10 Rule 9A(15)(1)(a) and (2)(b) – locus standi to bring proceedings – Order 12 Rule 1 – lack of consent to be joined as a plaintiff – Order 5 Rule 3(1)(b) – abuse of process 

Cases Cited:

Hilary Singat  v. Commissioner of Police (2008) SC910
Papua New Guinea Air Pilots Association v The Director of Civil Aviation and the National Airline trading as Air Niugini [1983] PNGLR 1

Counsel:

P. Punau, for the First Plaintiff
S. Ranewa, for the Second Plaintiff
K. Pilisa, for the First Defendant
W. Agusave, for the Second & Third Defendants

DECISION

20th April, 2018

1.	YAGI J:	This is an application by the first defendant to dismiss the proceeding on a number of grounds under the National Court Rules (NCR). In summary the grounds are:

1.	failure to comply with court directions.

2.	failure to appear at directions hearings.

3.	abuse of process on the basis that the first plaintiff lacked standing and that the second plaintiff did not consent to be joined as a co-plaintiff in the proceeding.

2.	The first defendant moves on his amended notice of motion filed on 8 October 2015 and relies on a number of his own supporting affidavits as follows:

•	Affidavit sworn 28 August 2015 and filed on 15 September 2015
•	Affidavit sworn 5 July 2014 and filed on 15 September 2015
•	Affidavit sworn 14 September 2015 and filed on 15 September 2015
•	Affidavit sworn and filed on 8 October 2015

3.	The first defendant also relies on an affidavit by Wilma Banake Agusave which was sworn and filed on 08 October 2015.

4.	The amended motion seeks the following orders:

1.	(paragraph 1 is deleted)
2.	The proceedings be dismissed in its entirety pursuant to Orders 10 Rule 9A (Listings Rules 2005) 15(1)(a) and (2)(c) of the National Court Rules for failure by the first and second plaintiffs to comply with Court Order of 07th July 2015.
3.	The proceedings be dismissed pursuant to Orders 10 Rule 9A (Listings Rules 2005) 15(1)(a) and (2)(b) of the National Court Rules for failure by the second plaintiff to appear at the Directions Hearing on 02 December 2014, 03 March 2015, 19 March 2015 and 07 July 2015.
4.	Alternatively, the proceedings be dismissed pursuant to Order 12 Rule 40 and Order 5 Rule 3(1)(b) and Order 12 Rule 1 of the National Court Rules –
a.	For being frivolous and vexatious as both plaintiffs lack the standing in the causes of action as pleaded and are not entitled to the reliefs sought.
b.	As being abuse of process as the first and second plaintiffs lack standing, right to review and challenge the revocation of the Certificate of Authorized Occupancy (“CAO”) over the disputed land at section 06 Allotment 10 Goroka.
c.	As being abuse of process as the plaintiffs do not have the standing or right to review or challenge the issuing of title in the land to the first defendant.
d.	As being abuse of process on the basis that the first plaintiff commenced these proceedings and joined the second plaintiff without the knowledge, consent and authority of the second plaintiff.
e.	For being an abuse of process and incompetent for failure to give Notice to the Independent State of Papua New Guinea under section 5 of the Claims By and Against the State Act prior to commencing these proceedings.
5.	Consequential relief pursuant to Order 12 Rule 1 of the National Court Rules that the first plaintiff give vacant possession of the Land described as section 06 Allotment 10 Goroka to the first defendant within 14 days.
6.	Cost of this application be borne by the first and second plaintiffs to be taxed, if not agreed.
7.	Cost of the proceedings be borne by the first and second plaintiffs to be taxed, if not agreed.
8.	Such further or other orders this Honourable court deems fit.”

5.	The second and third defendants support the application by the first defendant.

6.	The first and second plaintiffs oppose the application. They rely on the following affidavits:

•	Affidavit of Steven Ranewa sworn 3 October 2015 and filed on 3 November 2015
•	Affidavit of Steven Ranewa sworn 2 September 2015 and filed on 4 September 2015
•	Affidavit of Joseph Tupuri sworn 9 September 2015 and filed on 11 September 2015
•	Affidavit of Tirukes Kapera sworn 14 April 2015 and filed on 15 April 2015

Background Facts

7.	The dispute in this proceeding relates to title in a residential property described as Section 10 Allotment 6 Goroka contained in State Lease Volume 16 Folio 51 (the property).

8.	The property was held under a Certificate of Authorized Occupancy (CAO) by the then Civil Aviation Authority (CAA) for the purpose of allocation to its officers for accommodation. The CAA was a State authority whose functions and responsibilities relate to regulating the aviation services in Papua New Guinea. The authority was recently restructured under the government’s reform programs. Consequently CAA was dismantled and transformed into new entities one of which is the National Airports Corporation Limited (the second plaintiff). The reform effectively separated the regulatory and commercial functions of the CAA.

9.	As part of the restructure program various assets and properties of the former entity (CAA) were distributed amongst the new entities. The property, the subject of this proceeding, was allocated to the second plaintiff.

10.	At all material times the first plaintiff was an employee of the CAA who resided on the property and had paid a deposit on the property under a Home Ownership Scheme approved by CAA. He was an approved buyer of the property. He too, as an employee of the former entity, was transferred and made an employee of National Airports Corporation Ltd, the second plaintiff. However, he was shortly thereafter terminated from employment with the second plaintiff for serious allegations of financial and administrative abuse and mismanagement.

11.	During the transition period of the restructure and reform process the second defendant, allegedly without due notice, cancelled the CAO and granted the title in the property to the first defendant. The title is now registered in favour of the first defendant.

12.	The claim by the plaintiffs in the proceeding is based on fraud and illegality. The plaintiffs claim that the title was granted to the first defendant fraudulently and further that due process including the statutory requirements in respect to cancellation of the CAO and issuing of title were breached. They therefore seek to annul the first defendant’s title and hence restoring the status quo. The action by the plaintiffs in these proceeding is therefore based on s. 33(1)(a) of the Land Registration Act which basically allows for a registered interest in the title to property to be set aside on grounds of fraud.

Failure to comply with court directions

13.	The first defendant says that the plaintiffs have failed to comply with an order made by the Court on 7 July 2015. The particular order which is said to be disobeyed is in these terms:

 “First and second plaintiffs to take out Orders issued today and serve on defendants.”

14.	The plaintiffs do not dispute that they did not comply with the order. However, Mr. Ranewa, counsel for the plaintiffs, explained that he was not present when the order was made and it did not come to his attention until the lawyer for first defendant informed him in a letter dated 10 August 2015 which he received on 14 August 2015. By then he had drafted the statement of agreed and disputed facts and legal issues for trial to be filed on 1 September 2015.

15.	I am satisfied the explanation offered for the failure is reasonable in the circumstances. I find that the failure was not intentional and contumelious. I dismiss this ground.

Failure to appear at Directions Hearing

16.	As regards the contention that the second plaintiff failed to appear on 4 consecutive occasions since 02 December 2014, I consider that issue should have been raised by the first defendant at the earliest opportunity. By delaying the complaint he has acquiesced in the conduct and it is not reasonable and fair to complain about the failure at all. In any event there is no evidence that the first defendant had forewarned the second plaintiff of his intention to apply for appropriate orders if the failure continues.

Lack of Consent by the Second Plaintiff

17.	As regards the issue of the first plaintiff commencing the proceedings on behalf of the second plaintiff without the consent of the second plaintiff, the first defendant relies on Order 5 Rule 3(1)(b) and argues that non compliance with this procedural requirement tantamount to abuse of process and therefore a justifiable ground for the proceeding to be dismissed pursuant to Order 12 Rule 40(1)(c) of the Court Rules.

18.	Order 5 Rule 3 states:

“3.	Joint right. (8/3)
(1)	Where, in any proceedings, the plaintiff claims relief to which any other person is entitled jointly with him —
(a)	all persons so entitled shall be parties to the action; and
(b)	any of them who do not consent to being joined as a plaintiff shall be made a defendant.
(2)	Sub-rule (1) applies subject to any Act and applies unless the Court gives leave to the contrary.”

19.	The evidence indicates that the second plaintiff was not aware of the proceedings being commenced by the first plaintiff and which the second plaintiff had been joined as a co-plaintiff. The proceeding was commenced on 04 October 2012. In or about March 2014 the second plaintiff was made aware of the proceedings. Upon becoming aware of the proceedings the second plaintiff took the position consistent with the first plaintiff, in that, the cancellation of the Certificate of Occupancy (CoA) and the transfer and registration of title to the first defendant was by fraud. 

20.	This Rule makes it plain that all plaintiffs who have the same or similar rights or interests are entitled to sue as co-plaintiffs in the same proceeding. One of the major reasons is to avoid multiplicity of proceedings. However, it is important to appreciate that paragraph (b) of Rule (3)(1) is not to be read alone, it must be read in conjunction with paragraph (a) because of the adjoining word “and”. Reading both provisions together indicate to me that there is flexibility where a party may wish to oppose the common rights or interests. This is not the situation in the present case. The second plaintiff disputes the current registered rights or interest in the State Lease under s. 33 of the Land Registration Act.

21.	The National Courts Rules regulate the practice and procedures of the Court and are intended to guide the parties to attain justice on the substantive merits of the case and are not an end to themselves. See the Supreme Court decision in Hilary Singat v. Commissioner of Police (2008) SC910. Dispute over title to land is always a controversial issue and needs to be resolved on its substantial merits rather than on mere technicalities. The effect of the application by the first defendant is to remove the second plaintiff as a party in the proceedings. The Court has power under Rule 9(a) of Order 5 of the Court Rules to remove a party in the proceedings in circumstances where a party has been improperly joined. However, at the same time the Court’s power is discretionary and Rule 7(1) provides that proceedings should not be defeated by reason of misjoinder of a party.  Subrule (2) of Rule 7 makes in plain that as far as possible the Court should allow parties to contest their rights and interests and have the substantive merits of the case determined. Where a party having being made aware of a litigation that affects his rights or interest and has shown no interest in participating in the litigation then there may be a reason for the Court to exercise its powers accordingly. In this case the second plaintiff having being made aware of the proceedings has decided to challenge the legality of the cancellation of the CAO and registration of title.

22.	In all the circumstances this Court is not satisfied that there is good, reasonable and strong reason to exercise its discretionary power in the circumstances of the case.

Lack of Standing by the First Plaintiff

23.	Under this ground the first defendant has advanced a number of grounds couched under Order 12 Rule 40 to argue that these grounds amount to abuse of process and therefore warrant an order for the dismissal of the proceedings. The grounds are enumerated in paragraphs 4(a) – (e) of the amended notice of motion. However, paragraph (d) has already been dealt with earlier. This leaves (a), (b), (c) and (e). 

24.	Paragraphs (a), (b) and (c) concerns the issue of lack of standing by the plaintiffs in respect to the cause of action and the challenge as to the revocation of the CAO and the subsequent issuing of the title to the first defendant. 

25.	With regards to the cause of action the first defendant argues that the first plaintiff lack standing on the basis that when his employment with the former CAA ended it automatically follows that his right to remain in occupation of the property also ceased. Consequently, it is argued, he does not have any legitimate rights or interest over the property to commence this proceeding. The first defendant relies on the following statement made in Papua New Guinea Air Pilots Association v The Director of Civil Aviation and the National Airline trading as Air Niugini [1983] PNGLR 1:

“depending on the nature of relief, a plaintiff will have locus standi where he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interest, and perhaps to his social and political interest.”

26.	I do not agree with the first defendant as regards this contention. In my view the contention is misconceived. The undisputed evidence is that the first defendant had entered to an agreement with the former CAA to purchase the property and had made down or part-payment towards purchasing the property. On this basis he has legal, if not, equitable interest in the property. I am satisfied that there is evidence of actual injury to his property rights or interest (if proven).

27.	With regards to the issue of revocation of the CAO it is submitted by the first defendant that the revocation and gazettal notice occurred prior to the corporatization process and CAA did not challenge the revocation. The evidence is that CAA and subsequently NAC Ltd (second plaintiff) was not aware of those actions taken in respect to the CAO. The second plaintiff became aware only after the issuance of current proceedings. I am satisfied the second plaintiff has standing in that regard in the proceedings. I therefore reject the claim by the first defendant.

28.	As to the claim that the plaintiffs failed to give notice of the claim within time under s. 5 of the Claims By and Against the State Act (CBASA), whilst this fact is true I am of the opinion that to dismiss the proceeding on that basis would be most unfair and grossly unjust to the rights and interests of the plaintiffs in the circumstances of the case. In this respect I note s. 5(2)(c)(ii) of the CBASA gives this Court the power to validate a claim which fails to comply with the mandatory pre-condition “on sufficient cause being shown”. This provision states - 

“5.	Notice of claims against the State.

(1)	No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant to—
(a)	the Departmental Head of the Department responsible for justice matters; or
(b)	the Solicitor-General.

(2)	A notice under this Section shall be given—
(a)	within a period of six months after the occurrence out of which the claim arose; or
(b)	where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or
(c)	within such further period as—
(i)	the Principal Legal Adviser; or
(ii)	the court before which the action is instituted,
on sufficient cause being shown, allows.

(3)	A notice under Subsection (1) shall be given by—
(a)	personal service on an officer referred to in Subsection (1); or
(b)	leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).”
[Emphasis added]

29.	In this case there is evidence by the plaintiffs that in respect to the action by the second defendant to revoke the CAO, the second defendant appears to have failed to give notice of his intention or even notification of his action to the CAA and the successor entity (second plaintiff) and hence the second plaintiff was not aware of the revocation until after the proceedings were commenced. In my view where an authority desires to take any action that is adverse to the interest of a person in respect to rights, interest and title in State Lease or registered interest in land the person affected is entitled to be given appropriate and reasonable notice. In this case, in my view, it is most unfair and grossly unjust for the State and other defendants in this action, to belatedly use the legal technicality to deprive the plaintiffs to fairly contest the legality of their action. In the circumstances, I am satisfied that sufficient cause has been shown by the plaintiffs and accordingly I would exercise the power vested in the Court under s. 5(2)(c)(ii) of the CBASA to allow the plaintiffs to challenge the actions of the second defendant in this proceeding.

30.	For all these reasons the application by the first defendant must fail and is dismissed with costs.

31.	The formal orders are:

	1.	The application by the first defendant is dismissed.

2.	The first defendant shall pay the cost of the first and second plaintiffs in this application on part-party basis, if not agreed, to be taxed.

3.	Time for the entry of the order is abridged to the time of settlement by the Registrar.

__________________________________________________________________
Punao & Co Lawyers:      Lawyers for the First Plaintiff				
Kawat Lawyers:                Lawyers for the Second Plaintiff
Pilisa Lawyers:                  Lawyers for the First Defendant				
Acting Solicitor General:   Lawyers for the Second & Third Defendants