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Ahwong v Ane [2020] PGNC 305; N8512 (23 September 2020)

N8512

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 27 OF 2020

BETWEEN:
JOHN DARREL AHWONG
First Plaintiff

AND
JEREMIAH AHWONG
Second Plaintiff

AND
THOMAS AHWONG
Third Plaintiff

AND
ALA ANE, In his capacity as the Acting Registrar of Titles
First Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND
JOHN THOMAS AH-WONG
Third Defendant

Waigani: Miviri J
2020: 15^th September

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating summons – Third defendants Amended Notice of motion – Order 16 Rule 13 (13) (2) (a) & (b) (1) NCR – Dismissal of Proceedings – Abuse of court process – No reasonable cause of action – WS proceedings same matter on merit Dealt with – Res judicata – court protect its own process – serious abuse of process – proceedings dismissed – cost follow event on indemnity basis.

Cases Cited:

Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906
Opi v Telikom PNG Limited [2020] PGNC 168; N8290

Counsel:

N. Kamjua, for the Applicant
L. Dos, for Third Defendant

P. Yom, for First and Second Defendant

RULING

23^rd September, 2020

1. MIVIRI, J: This is the ruling of the court on two motions - one an amended Notice of motion dated the 10^th September 2020 by the third defendant. He seeks pursuant to Order 16 Rule 13 (13) (2) (a) and (b) (i) of the National Court Rules “the rules” dismissal of the proceedings as being incompetent an abuse of process. This is on the basis that the Plaintiff has failed to file a separate notice of motion to apply for Judicial Review within 21 days pursuant to Order 16 rule 5 of the rules. That no reasonable cause of action or an arguable case is demonstrated. And that the plaintiff lacks locus standi and the claim is time barred. And he has also failed to exhaust internal administrative avenues.
   
2. The second order serves no utility, the Supreme Court Appeal having been dismissed.
   
3. The second motion is by the Plaintiff for an interim injunction against the third defendant pursuant to Order 16 Rule 2 of the Rules and Order 16 (3) (8) of the Rules. The basis is that he is living and has been living on the subject land in dispute all his life like his father’s together with the third defendant. He has been served with notices to vacate the subject land by the third defendant who is currently the registered proprietor of the subject land. And the present judicial review proceedings against the first defendant is because of the refusal to pursue registration of the subject land which occurred more than 50 years ago by the defendants. It goes without saying that this is not compatible with order 16 Rule 4 as to delay and time. And would be seriously viewed in respect of his standing on the matter and by what authority he comes because the third defendant is the current registered proprietor of the subject land. And drawing backward in time there is no evidence from where he stands to tie him in so as to give him standing.
   
4. In support of the motion he relies on the affidavit of the second plaintiff Jeremiah Ahwong sworn 11^th September 2020. He confirms that all the plaintiffs are living on the subject land comprising eleven (11) families from children to young adults who will be affected by the eviction if it goes ahead. And discloses fences that have been erected on the subject land where his father with other immediate relatives are buried including their grand mother Bessie Ahwong mother of the third defendant. The subject notice gives 21 days for them to voluntarily vacate the subject land.
   
5. A preliminary point which must be settled before consideration and determination is that both motions emanate from the present proceedings and revolve between the parties over the same property Portion 132 Milinch of Granville, Fourmil of Moresby State Lease volume 8, Folio 1826 registered proprietor was one late Bessie Ahwong grandmother of the Plaintiffs and mother of the third defendant the subject core to this proceedings. It is pertinent that both be dealt with together as the motions in my view are the opposite ends of the same matter one by the Plaintiff and the other in response by the third defendant which is the same with the other defendants. Hence no injustice would entail in the hearing of both together. Hearing both together will lead to effective determination of the dispute over the subject property. The registered proprietor is the uncle and the nephews’ nieces’ children of the brothers of the third defendant are the plaintiffs. Their grandmother is the mother of the third defendant. Both parties are family and very closely related. The dispute is emotional, but the law sets out ownership not emotion. What matters in law is the instrument under the land Registration Act settling the registered proprietor in this case the third defendant. Hence both motions are related and revolve around the same land in dispute and can be dealt with together. Therefore, I hold that both motions will be dealt with together. Accordingly, I deal with both together.
   
6. In support of its motion the third defendant has filed and relies on two affidavits firstly, affidavit sworn 26^th February 2020, and secondly further affidavit filed the 28^th August 2020. The former is very detailed with 11 pages and has annexures from “JTA 1, to JTA 24. Fundamental and underpinning is Annexure “JTA21” Court Order by this court ordered 23^rd December 2019 filed 24^th December 2019 in the proceedings styled WS 1016 of 2019 (CC3) Jeremiah Ah-Wong & John Darrel Ah-Wong for and on behalf of themselves and 8 others v John Thomas Ah-Wong. “The Court Orders that: 1. The proceedings is dismissed for being an abuse of the Court process. 2. The plaintiffs to pay cost of and incidental to this Court proceedings.” Over the page is annexure “JTA22” that is the decision of this court in proceedings styled WS No. 1016 of 2019 Jeremiah Ah-Wong & John Darrel Ah-Wong for and on behalf of themselves and 8 others v John Thomas Ah-Wong. It is presided by Justice Kariko who deals with this matter as it is now brought. The parties are the same substantially. The matter is the same subject land Agricultural State Lease formally crown Lease over land described as Portion 132, Milinch Granville, Fourmil Moresby, Central Province in Volume 8 Folio 1826 as is here. And the cause of action is the same as is pleaded in this proceeding. This court has dealt with the merits of the matter pleaded there by writ of summons. Here judicial review is sought against that decision of the registrar of titles subject of that proceeding as is the case here. It is the very same matter by its facts and has been dealt with by this court. In law it cannot for all intent and purposes come here again to the same court that dealt with the matter.
   
7. In essence this is a very fundamental fact setting in motion res judicata canvassed in Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 (28 March 2008). The fault of the plaintiff to seek an inappropriate originating process in the first cannot be cured by coming on the same facts’ same merits by judicial review. This court is functus officio, of its jurisdiction in the matter. What has happened at the discretion of the plaintiff is an institution of process that is really an abuse. Because it has unnecessarily eaten into court time logistics management and taken away judicial time for an action not warranted in law. The court will seriously protect its process from abuse which is the case here evident by all set out above. The judgment in WS 1016 of 2019 has fully dealt with this matter on its merits on the same facts, same parties, same issue the land subject of this proceedings yet again. It is not open in law for the plaintiffs to bring the present proceeding because that is square and tilts the balance on the balance of probabilities within the discretion under Order 12 Rule 40, dismissal is warranted and there is nothing apparent or identifiable against to warrant otherwise. That will foretell the fate of the plaintiff in this proceeding.
   
8. In my view the facts set out above show a very serious abuse of the process of court. The plaintiff is not content that it has been determined on merit by this court and dismissed. He has not lodged an appeal to the Supreme Court from that decision. But has lodged this proceeding knowing very well it has exhausted and usurped powers of this court. This court is over congested with cases. There are genuine cases that have had to wait in line to meet the hand of justice. Time, money resources are used including judicial time to see out. The facts of this case depict serious action that must be taken against the parties involved so that there is no laxity in the way litigation is sought by any others with similar inclinations. That abuse of the process of court is deterred.
   
9. In this regard the aspect of cost is a discretionary matter it is awarded where conduct of party or lawyer is so improper, unreasonable, or blameworthy that punishment is warranted: Opi v Telikom PNG Limited [2020] PGNC 168; N8290 (29 April 2020). And so, in awarding costs I am mindful of the facts circumstances posed here. The pertinent facts that give rise here are that the registered proprietor is the uncle the third defendant and the Plaintiffs who are the offspring of the other brothers from the mother grandmother Bessie Ahwong. All of whom are buried on that land which has derailed peaceful co existence of the family in this way. It must also be emphasized that no amount of litigation will bring finality to a family feud as here over land. The third defendant is now the head of that family over that land. As such he must be respected the land derives from his parents grandparents to the plaintiffs. He is also a Eucharistic Minister in the Catholic Church on his part it is incumbent that he brings the family together in the matter. For the plaintiff there is blameworthiness on their part on the insistence to having this court revisiting a matter it had given serious judicial time to. This is not to say or to suppress a citizen with a genuine cause of action and Lawyers from serving their clients to the best and of discharging their duties without fear or favour but to ensure that the preparation of cases are done so as to avoid the present. Costs will therefore be on an indemnity basis upon the plaintiff to follow the event. They will pay all of the costs of each of the defendants on an indemnity basis forthwith.
   
10. The orders of the court are;
    
    • (1) The proceeding is res Judicata.
    • (2) The proceeding is an abuse of court process.
    • (3) The proceeding is dismissed in its entirety forthwith.
      
11. Costs will follow the event on an indemnity basis.
    

Orders Accordingly.

__________________________________________________________________

Wal & Associate Lawyers : Lawyer for the Plaintiff/Applicant

Office of the Solicitor General : Lawyer for the First & Second Defendants

Jema Lawyers : Lawyer for the Third Defendant