N9710

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 355 OF 2019

BETWEEN
AINBAI – ELIS HOLDING LTD (1-62169)
Plaintiff

AND:
STARLINK LIMITED (1-71683)
Defendant

Vanimo:   Rei, AJ
2021:  10th September
2022:  25th April

CIVIL PRACTICE – Notice of motion to dismiss proceedings – lump together of orders sought – abuse of process – motion dismissed.

Cases Cited:

Dengnenge Resources Development Ltd -v- Vanimo Jaya Ltd [2019] N7950	
East New Britain Provincial Government -v- PNG Forest Authority & Ors [2019] N8129
Amos Ere -v- National Capital Commission (2016) N6515
Pius -v- Chris Rupen (2015) SC1430

Counsel:

Mr. Livingstone Baida, for the Plaintiff	 
Mr. Copland Raurela, for the Defendant	

25th April, 2022

1.	REI AJ:   The Plaintiff issued proceedings by way of Order 4 proceedings, an Originating Summons, on 1st May 2019 seeking Declaratory Orders as follows:

(i)	A Declaration pursuant to Section 155(4) of the Constitution and section 4 of the Fairness of Transactions Act 1993, the Agreement entered into between the Plaintiff and the Defendant on 2 March 2010 declared null and void ab initio as the Agreement was in breach of the Fairness of Transactions Act 1993 where the Plaintiffs having less bargaining power were taken advantage of by the Defendants constituting unfair transaction as defined under the Act.
(ii)	A Declaration that pursuant to Section 155(4) of the Constitution, the Sub-Lease entered into between the Plaintiff and Defendant on 3 December 2010 be declared null and void ab initio as the Sub-Lease was derived from the purported Agreement of 2 March 2010 unfair transaction under the said Agreement.
(iii)	A Declaration that the Plaintiff is the duly registered proprietor of the State Lease described as Special Agriculture Business Lease, over area known as Portion 40c, Bewani, Aitape, West Sepik Province, Volume 18, Folio 55, Bewani Milinch, Fourmil Aitape, West Sepik Province issued on 2 December 2010 and the Defendant immediately surrender the possession of the Title to the Plaintiff within 48 hours of service of the Declarations herein upon the Defendants.
(iv)	As a consequence of terms 1, 2 and 3 above, an order in the nature of mandamus ordering the Defendant to forthwith deliver the original owner’s copy of the title instrument of the State Lease currently in its possession to the Office of the Registrar of Titles within forty eight (48) hours from the date service of this order on the Defendants registered office.

2.	The Plaintiff also seeks certain consequential Orders.

3.	In support of the Orders sought, the Plaintiff filed an Affidavit sworn by Kevin Imba on the 9th day of July 2019.

4.	Since the filing of the proceedings the Plaintiff took no meaningful steps to advance its claim against the Defendant.

5.	It was not possible for the matter to be dealt with in 2019 and 2020 because of the general lock down in the country caused by COVID 19 pandemic.

6.	The Plaintiff should not be solely blamed for the inactivity in the matter.

7.	By way of a Notice of Motion filed by the Defendant on the 31st day of August 2021, Orders were sought that:

(i)	The proceedings be dismissed pursuant to Order 12 Rule 40(1) (a) (b) & (c) and Order 8 Rule 27 (a) (b) & (c) of the National Court Rules;
(ii)	The Plaintiff shall pay the Defendant’s costs of and incidental to the proceeding; and
(iii)	Such further Orders the Court deems fit.
(emphasis added)

8.	The Notice of Motion came up for hearing on the 10th day of September 2021.

9.	The Defendant relied on the Affidavit of Copland Raurela Counsel for the defendant filed on 31st August 2021.  (Dec No. 17).  The Defendant did not oppose the use of this Affidavit which was sworn by Counsel.

10.	The Plaintiff did not file any affidavit in response to the affidavit filed by the Defendant and did not give any notice(s) under the Evidence Act giving notice to rely on affidavits.

11.	However, Mr. Baida submitted he will rely on the Affidavit of Kevin Imba filed on the 8th day of July 2019 in response to the Affidavit filed by the Defendant without giving any notice under the Evidence Act of its intention to rely on such affidavit which was filed more than 24 months ago.

ISSUE

12.	The issue is whether the proceedings be dismissed on the basis of the Order(s) sought in the Notice of Motion filed by the Defendant on 31st August 2021.

FACTS

13.	In or about the 2nd of December 2010,  the Department of Lands & Physical Planning issued to the Plaintiff company a Special Agriculture and Business Lease for a period of 99 years commencing from 15th November 2010 to 14 November 2019 which sublease was issued over the relevant provisions of the Land Act and Land Registration Act.

14.	The Title Deed of the property is described as Volume 18 Folio 55 Portion 40C, Milinch, Bewani, Fourmil Aitape, West Sepik Province.

15.	On or about the 2nd of March 2010, the Plaintiff and Defendant entered into a Marketing & Logging Agreement.  Subsequent to that and on 10th December 2010, the Plaintiff subleased the property to the Defendant.

16.	Pursuant to the Marketing & Logging Agreement, the Defendant solely funded and was responsible for all costs in ensuring the Plaintiff’s customary land was surveyed and registered for the purposes of an agriculture project.

17.	On 2nd December 2010, the Plaintiff was issued a Special Agriculture Business Lease (“SABL”) by Department of Lands & Physical Planning through the Office of the Registrar of Titles.

18.	Pursuant to the terms of the Agreement, the Plaintiff sub-leased the SABL to the Defendant which sub-lease was approved by the Registrar of Titles and registered against the SABL Title in favour of the Defendant on 03 December 2010.

19.	On or about 21 July 2011, the then Acting Prime Minister Honourable Sam Abel established a Commission of Inquiry into SABL projects throughout the Country. 
	
20.	This SABL was one of those that was the subject of the Commission of Inquiry and recommended to be revoked for non-compliance of statutory requirements.

21.	The Plaintiff has commenced this action, somewhat to give effect to the recommendations of that Commission of Inquiry which is not before me.

NOTICE OF MOTION FILED 31ST AUGUST 2021

22.	The Applicant/Defendant raises two (2) arguments.

23.	Firstly, The Applicant/Defendant contends that there is an abuse of the process of Court in that; under the provisions of the Fairness of Transactions Act, the entire proceedings is statute barred as it was commenced after a lapse of 6 years but 9 years or so later.

24.	The events complained of herein arose on 3rd December 2010 and the Plaintiff took no steps until after a lapse of more than 9 years it instituted  this action.

25.	Following on from that argument the Applicant/Defendant contends that the entire proceedings is misconceived and is frivolous, vexatious and abuse of the process of Court pursuant to Order 12 Rule 40 (1)(a), (b) & (c) of the National Court Rules as it should have come to Court by way of judicial review proceedings under Order 16 Rule 3 of the National Court Rules (“the NCR”) as the Applicant/Defendant says that the primary orders sought in the originating summons under paragraph 1, 2 & 3 deal with the granting of a sublease of the property.

26.	The Plaintiff/Respondent rebutted saying that the Notice of Motion filed by the Applicant/Defendant be dismissed as it is incompetent as the provisions of Order 12 Rule 40 and Order 8 ought not to be lumped together in seeking orders to dismiss proceedings and that Applicant/Defendant should have relied on a particular sub rule of Order 12 Rule 40 (1) and Order 8 when seeking an order to dismiss.

27.	The Defendant did not address the issue as to whether the matter should have come to Court by way of judicial review proceedings as it involves the decision of an administrative body – the Registrar of Titles in the subleasing of a property.

28.	Without this, the Court is absolved of jurisdiction.

29.	I note the Applicant/Defendant herein has (lumped together the provisions of Order 12 Rule 40(1) (a), (b) & (c) and Order 8 Rule 27 (a), (b) & (c) of the NCR in seeking an Order to terminate these proceedings.  The National Court of Justice said in the case of Dengnenge Resources Development Ltd -v- Vanimo Jaya Ltd [2019] N7950 that:

“Each of the ground under Rule 40 and alternative grounds which should be specifically pleaded in the notice of motion are distinct grounds.  They should not be lumped together.  The Constitutional right to be heard cannot be urgently set aside, as:

•	the Rules provide a safeguard against abuse of process;
•	the object of the Rules is to stop cases which are obviously frivolous or vexatious or unsustainable;
•	a claim may be frivolous it is obvious that it cannot possibly succeed and is bound to fail;
•	a claim is vexatious if it is a sham, cannot succeed and amounts to harassment of the other party;
•	to disclose a cause of action there must be pleaded all facts it will be necessary for a plaintiff to prove in order to support his right to judgement.”

30.	East New Britain Provincial Government -v- PNG Forest Authority & Ors [2019] N8129 it was said that:

“…the onus is on the applicant to demonstrate or establish each of the grounds relied on the balance of probabilities for an order seeking dismissal of proceedings.  Otherwise a plaintiff should not be driven from the judgement that UNLESS THE CASE IS UNSUSTAINABLE.”

31.	In the written submissions filed by Mr. Badia, I note he relies on Amos Ere -v- National Housing Commission (2016) N6515 in which the Supreme Court case of Pius -v- Chris Rupen (2015) SC 1430 was cited which Court sets out the requirements for disclosing a reasonable cause of action in seeking declarations.  It says:

“∙	there must exist a controversy between the parties;
∙	the proceedings must involve a right;
∙	the proceedings must be brought by a person who has a proper tangible interest in obtaining the order;
∙	the controversy must be subject to the Court’s jurisdiction;
∙	the defendant must be a person having a proper or tangible interest in opposing the plaintiffs claim;
∙	the issue must be real one.  It must not be merely of academic interest, hypothetical.”

32.	The declarations sought by the Plaintiff in this matter can be described as having satisfied the rule as set down in the above Supreme Court case of Amos Ere -v- National Housing Corporation EXCEPT the requirement “that controversy must be subject to the jurisdiction of the Court…”

33.	Prima facie the Orders sought in the Notice of Motion filed by the Applicant/Plaintiff, it is noted that Order 12 Rule 40(1) (a), (b) & (c) and Order 8 Rule 27 (a) (b) & (c) have been lumped together in seeking to dismiss the proceedings.

34.	In the light of the decision of the Supreme Court in Amos Ere case, the notice of motion should be dismissed.

35.	The Applicant/Respondent, however, relies on the “lumped together” provisions of Order 12 Rule 40 (1) (a) (b) or (c) to dismiss the proceedings because it is (i) time barred and (ii) wrong mode of proceedings was adopted seeking to have the Title Deed set aside or declared null and void ab initio.

36.	These are issues that should be left to the trial Judge to determine.

CONCLUSION

37.	I therefore find that the Notice of Motion filed by the Defendant is incompetent and is dismissed with costs to the Plaintiff.
________________________________________________________________
Livingstone Baida: Lawyer for the Plaintiff	 
Raurela Lawyers: Lawyer for the Defendant