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Tokaukau v Benedict [2018] PGNC 417; N7521 (19 October 2018)

N7521

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
WS No. 352 of 2018

ANDY WALAUN TOKAUKAU

Plaintiffs

V

ELARI BENEDICT

Defendants

Kimbe: Miviri AJ
2018: 12 &19 October

PRACTISE & PROCEDURE – originating summons – notice of motion – Order 12 r 1,40, (1) (c) NCR – frivolous and vexatious – abuse of process – same subject property – dismissal plaintiff respondent – no locus standi–indefeasible title of defendant applicant – valid current pending court order enforcing title –delivery of vacant possession by– orders granted on terms sought–costs on solicitor client basis.

Cases cited:

Agiru v Electoral Commission [2002] PGSC 5; SC687
Beecraft No.20 Limited v Pok, Minister for lands [2001] PGNC 85; N2125
Dent v Kavali [1981] PNGLR 488
Ipara v Mineral Resources Authority [2011] PGNC 15; N4216
Kerry Lero trading as Hulu Hara Investments Ltd v Philip Stagg (2006) N3950
Pokia v Yallon [2014] PGSC 3; SC1336
Philip Takori v Simon Yagari (2008) SC905
NCDIC v Bogibada Holdings Pty Ltd and Continental Trading Pty Ltd [1987] PNGLR 135
Review Pursuant to Constitution Section 155(2) (b); Application by Herman Joseph Leahy [2006] PGSC 21; SC855
Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906
United States of America v WR Carpenters (Properties) Ltd [1992] PNGLR 185 Wamena Trading Company Limited v Civil Aviation Authority of PNG [2006] PGNC 57; N3058

Counsel:

F Kua, for Plaintiffs
A Kumbari, for Defendants

RULING
19^th October, 2018

1. MIVIRI AJ: This is the ruling of the court pursuant to a notice of motion filed by the defendant/applicant on 29^th June 2018 whereby the following orders are sought:
   

(i) Pursuant to Order 12 Rule 40 (1) (c) of the National Court Rules and in the inherent powers of the Court in controlling proceedings before it, the entire proceedings be dismissed for disclosing no reasonable cause of action, frivolity vexatiousness and an abuse of the Court process.

(ii) Pursuant to Order 12 Rule 1 of the National Court Rules and Section 155 (4) of the Constitution, the District Court Orders of the 1^st March, 2017 remain valid and enforceable against the Plaintiff and all her servants & agents.

(iii) Plaintiff to meet the costs of this Application.

(vi) Any other orders this Court deems fit.

Facts

2. In support of his Motion the Defendant relies on his own Affidavit filed 02^nd July, 2018, sworn the 29^th June, 2018. At the outset he holds indefeasible title to State lease Section Milinch Ulawun 9 allotment portion 1925, Talasea, West New Britain, volume 15 Folio 137 attached as annexure “A”. This is the subject of the statement of claim by Writ that the Plaintiff has filed the source of this proceedings against.
   
3. Notably also the affidavit asserts that the subject property is not occupied by the Plaintiff /respondent but relatives, servants or agents who harvest the fruits and benefit from it since 1996. And these include one Paul Lipo who resides and refuses to move out of the subject property culminating in the actions in court by the Defendant/Applicant since 2002.
   
4. Attached to the affidavit is annexure “B” a court order dated the 1^st March 2017 issued by the Bialla District Court presided by J. Amanu in the matter referenced DC 15/2017 parties Elari Benedict (complainant) vs. Andy J. Walaun Tokaukau Paul Lipo (defendants). The order is in five parts; (1) The Court Order of 1/12/2016 is set aside and discharged; (2) The Defendants and their family, agents and servants shall vacate the property described as Block 1925, Section 9 Kabaiyu and give peaceful possession to the Complainant within 30 days from today; (3) In default warrant be issued to the Police Force to enter and assist evict the Defendants and their families, agents or servants within reasonable force if necessary; (4) If aggrieved, parties may appeal within 30 days from today; (5) Each party bear their own costs. And that is certified with the seal of the Bialla District Court as the original in the civil jurisdiction there.
   
5. On the 27^th March, 2017 the Plaintiff/Respondent filed Notice of Appeal together with a Recognizance on Appeal and entry of appeal in the Kimbe National Court CIA 32 of 2017. It was not prosecuted for about 7 months and her Lawyers withdrew it subsequent orders to that effect annexure “C” to the affidavit. It is between Andy J Walaun Tokaukau (first appellant) and Paul Lipo (second appellant) vs. Elari Benedict (respondent) dated the 4^th April 2018 entered the 19^th April, 2018 court document number 14 in that matter. Which orders were leave granted to the First and Second appellants to withdraw the proceedings.
   
6. On 28^th May, 2018 Plaintiff served the current Writ of Summons 352 of 2018 with a letter annexure “D” to advise police not to enforce the orders of the district Court of the 1^st March 2017. This is a letter signed by the said lawyer in the letter head of Felix Kua Lawyers Kimbe advising of fresh institution of the current writ of summons set out above. For the lawyers for the defendant applicant to file search before instructing police or authorities in respect of the subject referenced as CIA No 32 of 2017 Andy Walaun & ors vs. Elari Benedict. The letter is copied to the police Station Commanders of Kimbe, Bialla, Navo and the company secretary Hargy oil Palm limited one Godwin Aiawa.
   

Defendant applicant’s case

7. The actions of the Plaintiff have adversely effected Defendant Applicant whose enjoyment of the subject property the lease holder over the property over years recognized by a current order of the Bialla District Court CIA 32 of 2017 which is not “res integra.” The Plaintiff has initiated by this Writ of summons over the same property the subject of the court order Bialla District Court CIA 32 of 2017 amounts to calculated mischief undermining the inherent powers at first instance an abuse of court process and on the face the cause of action is “estoppel”
   

Plaintiff Respondent’s Case

8. The plaintiff/respondent has argued that it is not an abuse of process and cannot be an abuse of process where improvements have been done on the subject property because the subject property has been sold to the plaintiff in the sum of K1000 and K200 worth of garden food with no formal documents to this effect. That loan taken out on the subject property by the defendant applicant was settled by the plaintiff respondent. The plaintiff applicant further contends that there was fraud by the defendant applicant. And the plaintiff seeks declaration that the action of the defendant applicant is unfair and illegal. An order invoking section 33 of the Land Registration Act that the registrar of titles delete the said title from the defendant to the plaintiff registering her as proprietor of the said property. Including that damages be assessed and costs of the proceedings apart from any other orders in the discretion of the court.
   

Analysis of Fact Law

9. The defendant applicants indefeasible title to State lease Section Milinch Ulawun 9 allotment portion 1925, Talasea, West New Britain, volume 15 Folio 137 attached as annexure “A” of his affidavit is proof in law that he is the legal title holder of that property not the plaintiff respondent. There is no administrative process that he has started with the registrar of titles to cease him of that title and to give that title to the plaintiff respondent. The current record from that office by law is that the defendant applicant is still current the title holder of that State lease.
   
10. By that fact any person not on the property by law or consent or delegation of the lease holder Eleri Benedict set out above must vacate possession of it including and by execution of a valid court order dated the 1^st March 2017 issued by the Bialla District Court presided by J. Amanu in the matter referenced DC 15/2017 parties Elari Benedict (complainant) vs. Andy J. Walaun Tokaukau Paul Lipo (defendants). The order is in five parts; (1) The court order of 1/12/2016 is set aside and discharged; (2) The defendants and their family, agents and servants shall vacate the property described as Block 1925, section 9 Kabaiyu and give peaceful possession to the Complainant within 30 days from today; (3) In default warrant be issued to the Police Force to enter and assist evict the Defendants and their families, agents or servants within reasonable force if necessary; (4) If aggrieved, parties may appeal within 30 days from today; (5) Each party bear their own costs. And that is certified with the seal of the Bialla District Court as the original in the civil jurisdiction there. Here that is firmed by section 155 (4) of the Constitution upon the plaintiff respondent.
    
11. That is a pending current Court Order relating to the same subject property it has not been set aside nor has it being discharged in that the plaintiff respondent has given up possession as ordered including his servants or agents. Appeal against was withdrawn particulars as set out in paragraph 5 above. The order of the Court is current unless and until it is set aside or discharged the plaintiff respondent cannot institute new proceedings on the same subject the same property the subject proceedings without discharge of that order pending and current within the meaning of Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008) reaffirming Agiru v Electoral Commission [2002] PGSC 5; SC687 (24 June 2002) and recently Pokia v Yallon [2014] PGSC 3; SC1336 (2 May 2014).
    

Plaintiff respondent alternative consideration

12. Even if the plaintiff’s case was adhered to it would be invoking the jurisdiction of the Court in a vacuum and will fail where there is no material properly substantiating tangible and lawful. The law is as good as the facts that are pleaded in support of it. It is upon the basis of the facts that what the law sets out is made out. A controversy between the plaintiffs respondents and the defendants applicant, that the former are instituting the action seeking declaration because of a right tangible and not academic for it to be subjected to the court’s jurisdiction, Ipara v Mineral Resources Authority [2011] PGNC 15; N4216 (2011). What is sought by the Writ of summons and the motion stemming underlies extensive facts and would not be appropriate in and by way of a declaration. It would not solve the issues raised, NCDIC v Bogibada Holdings Pty Ltd and Continental Trading Pty Ltd [1987] PNGLR 135 (24 July 1987). Because there is title in law vested in the defendant applicant and there is a court order on the basis which orders plaintiff respondent servants’ agents to vacate that subject property.
    
13. Extending the argument of the plaintiff/respondent further, Standing or “locus Standi” must be properly settled in law before coming into court as it will be fatal to an action so set out: United States of America v WR Carpenters (Properties)Ltd [1992] PNGLR 185 (29 June 1992). In an action seeking declaratory relief by originating summons the defendant moved to strike out the name of the plaintiff for miss description. In granting the motion of the defendant the court held amongst others, capacity to sue is depended on procedural laws and substantive laws of Papua New Guinea. The Embassy of the USA is not a legal person or an “entity in Law” and is therefore not a proper party to an action. Proceedings by way of originating summons are unsuitable where there are substantial dispute of facts to be determined and issues to be defined. Where the justice of the case so requires (where prejudice to a party is shown) when the mode of instituting proceedings precludes the opportunity to identify the issues in dispute the National Court may dismiss the suit; Constitution section 155 (4). Invoking is discretionary not mandatory and therefore proper material must be basis to sway not without Dent v Kavali [1981] PNGLR 488 (27 November 1981) It is not the basis here and so section 155 (4) cannot assist the plaintiffs respondents if their argument is to be considered: Review Pursuant to Constitution Section 155(2) (b); Application by Herman Joseph Leahy [2006] PGSC 21; SC855 (15 December 2006). Plaintiff is precluded he is not the title holder to the subject property in law and there is an order enforcing his vacation of that property that he must comply. He is not prejudiced.
    
14. Even by the power of the Court to make declaratory orders according to the principles of equity adopted under schedule 2.2 of the Constitution which derive from section 155 (4) of the Constitution. This is a wide discretion not confined to the terms of the rules of court. Pursuant to the discussion set out above even to accord in this way would not settle the dispute between the parties and in the way set out by the plaintiffs. Even more so is the fact that there is a current and pending valid court order against the plaintiff respondent and that the title document in law is of the defendant/applicant and therefore to proceed by this mode would still see no light for the plaintiff respondent and therefore must fail.
    

Order 12 rule 40.

Order 12 Rule 40 (1) is in the following terms; “40. Frivolity, etc. (13/5)

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—
(a) no reasonable cause of action is disclosed; or
(b) the proceedings are frivolous or vexatious; or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).”

15. It follows that principles relevant to summary dismissal of claims alleged to be frivolous or vexatious within Philip Takori v Simon Yagari (2008) SC905, approved by the Supreme Court explained earlier in Kerry Lero trading as Hulu Hara Investments Ltd v Philip Stagg (2006) N3950 is relevant and applicable here:
    

“Our judicial system should never permit a plaintiff or a defendant to be 'driven from the judgment seat' in a summary way, 'without a Court having considered his right to be heard'. A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside. At the same time however, the law, such as the Rules under consideration, provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court. The object of these rules are therefore 'to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious or obviously unsustainable'. In other words 'the object of the rule was to get rid of frivolous actions'. A claim may be frivolous if it can be characterized as so obviously untenable that, it cannot possibly succeed or that, the claim or defence is bound to fail, if it proceeds to trial. A claim or defence may be vexatious, if the case amounts to a sham or one which, cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or proving the claim. With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that, there are two parts to the phrase 'cause of action'. First, it entails a right given by law, such as an entitlement to reasonable damages for breach of human rights under s. 58 of the Constitution, commonly referred to as, the 'form of action'. Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action. The phrase 'cause of action' could thus be defined in terms of a legal right or form of action known to law with: 'every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved.' A statement of claim or a defence (as the case may be) must therefore, clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and the relevant and necessary facts (not the evidence) giving rise to the form of action. It follows therefore that, where a statement of claim or a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, and instead leaves it to guess work, it should be struck out. These rules provide a summary judgment procedure or remedy which is available to a plaintiff or a defendant, and one which vests and calls for an exercise of a discretion by the Court. The discretion must be exercised sparingly and only in a case where the statement of claim or the defence (as the case might be) is 'obviously and almost incontestably bad.' In other words this discretion can be exercised only in cases that 'are plain and obvious so that the master or Judge can say at once that the statement of claim [or defence] as it stands, is insufficient, even if proved, to entitle the plaintiff [or defendant] to what he asks' for. (emphasis mine)

Issue

16. Is there reasonable cause of action disclosed in the proceedings filed?
    
17. Whether the action filed by the Plaintiffs is frivolous and vexatious and should be discharged forthwith in accordance with this rule?
    
18. Whether the proceedings are an abuse of process of court?
    

Ruling

19. What has been set out above is clear that the writ of summons of the plaintiffs/respondents are 'obviously and almost incontestably bad and the particulars are set out above. It is sufficient to hold given all the above that the notice of motion of the defendants/applicants are granted that there is no reasonable cause of action disclosed by the proceedings that have been filed.
    
20. He has unnecessarily without any proper basis in law forced the defendant/applicant to go to court and by that fact and in accordance with Order 22 Rule 11 must be ordered to pay the costs of the proceedings on a Solicitor Client costs: Beecraft No.20 Limited v Pok, Minister for Lands [2001] PGNC 85; N2125 (5 April 2001)
    
21. And further the proceedings are frivolous and vexatious for the reasons set out above and are an abuse of process of court. The proceedings in its entirety is dismissed forthwith.
    
22. Plaintiff/Respondent to pay Costs on Solicitor/Client basis.
    

Orders Accordingly,
__________________________________________________________________

Felix Kua Lawyers : Lawyer for the Plaintiff Applicant
Abraham Kumbari Lawyers : Lawyer for the Defendant