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Kariko v Kuman [2022] PGNC 463; N9975 (6 October 2022)

N9975

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 173 OF 2022

BETWEEN:
JACK KARIKO as Secretary of the National Judicial Staff Services
First Plaintiff/Applicant

AND:
NATIONAL JUDICIAL STAFF SERVICES
Second Plaintiff/Applicant

AND:
PEKE KUMAN
First Defendant/Respondent

AND:
NATIONAL HOUSING CORPORATION
Second Defendant/Respondent

AND:
MINISTER for the DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Third Defendant/Respondent

AND:
DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Fourth Defendant/Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant/Respondent

Goroka: Mugugia, AJ
2022: 4^th & 6^th October

PRACTICE AND PROCEDURE – Return of ex parte interim injunctive orders - Action against the State - Issue relating to the competency of the proceedings - No Section 5 notice given to the State before instituting the proceedings - Non-compliance with Section 5 of the Claims By and Against the State Act 1996 - Abuse of process - Exercise of discretion – Proceedings dismissed.

Counsel:

S. Ifina, for the Plaintiffs
K. Sino, for the First Defendant
R. Uware, for the Third, Fourth and Fifth Defendants

RULING

6^th October, 2022

1. MUGUGIA, AJ: Located in the heart of Goroka Town is a property described as Allotment 10, Section 1, Goroka, Eastern Highlands Province. It contains an area of 0.3913 hectares (subject property). The subject property is owned by the National Housing Corporation and is currently occupied by the Second Plaintiff’s staff (security guards). The Plaintiffs, through their lawyers Rex Kasito Lawyers, instituted the current proceedings by Originating Summons on 6^th July 2022. The primary relief sought is a declaratory relief, that is, a declaration that the subject property was fraudulently facilitated and transferred by the National Housing Corporation, the Minister for the Department of Lands and Physical Planning and the Department of Lands and Physical Planning to Peke Kuman, and is therefore illegal and null and void. The consequential relief sought by the Plaintiffs in their Originating Summons is an order in the nature of an injunction to restrain the Defendants from evicting them from the subject property.

2. The Plaintiffs’ lawyers filed a Notice of Motion together with their clients’ Originating Summons on the same date, seeking orders in these terms:

“1. Pursuant to Order 4, Rule 37 of the National Court Rules, and Order 4, Rule 49(5)(ii) of the National Court Rules, the requirement of service of this application be dispensed with, and the matter be heard ex parte.

2. Pursuant to Order 4, Rule 37 of the National Court Rules, Order 12, Rule 1 of the National Court Rules, and Section 155(1) of the Constitution, an interim order restraining the Respondents from taking possession of the property described as Allotment 10, Section 1, Goroka, Eastern Highlands Province, pending the determination of the substantive matter.

3. Pursuant to Order 4, Rule 37 of the National Court Rules, Order 12, Rule 1 of the National Court Rules, and Section 155(1) of the Constitution, an interim order restraining the Respondents, and/or their agents/servants from issuing threats and disturbances in any form and manner to the Applicants, and their agents/servants regarding the property described as Allotment 10, Section 1, Goroka, Eastern Highlands Province, pending the determination of the substantive matter.

4. Any other Orders the Court sees fit.”

3. Gora J heard the Plaintiffs’ application ex parte on 11^th July 2022, and granted the orders in the terms of the Notice of Motion. The matter was then referred to me to deal with.

4. The First Defendant Peke Kuman was served with the interim orders of 11^th July 2022. On 18^th August 2022, he appeared in Court. Since the Plaintiffs’ lawyer did not turn up in Court, I adjourned the matter, and extended the interim orders of 11^th July 2022.

5. On 6^th September 2022, Mr Ifina appeared for the Plaintiffs and Mr Sino appeared for Peke Kuman. There was no appearance for the other Defendants’ lawyers because the Court documents and the interim orders of 11^th July 2022 were not served on their clients. I noted that no orders were made on 11^th July 2022 for service of the court documents on the other parties. I therefore adjourned the matter, extended the interim orders, and made an order for the Plaintiffs’ lawyers to serve all the Court documents filed in the proceedings on all the named Defendants. Since the State was named as a Defendant (Fifth Defendant), I raised a threshold issue in relation to the issuance of a Section 5 Notice to the State as required by the Claims By and Against the State Act 1996 (Claims Act).

6. The interim orders returned to Court on 27^th September 2022 for hearing inter-parties. Only Mr Ifina and Mr Sino were in Court. I adjourned the matter to 4^th October 2022 for all the parties’ lawyers (including the lawyers for the other named Defendants) to address the Court on the appropriateness of the interim orders continuing, and the threshold issue that I raised concerning compliance with Section 5 of the Claims Act. I made an order for the parties’ lawyers to file written extracts of submissions to address these issues.

7. On 4^th October 2022, I heard submissions on the threshold issue that I raised as it concerned the competency of the proceedings. Mr Ifina provided written submissions to the Court. He conceded that no Section 5 Notice was given to the State, and the proceedings is procedurally defective from the start. He sought to withdraw and discontinue the proceedings because of non compliance with the Section 5 Notice requirement. He submitted that the proceedings should be struck out and not dismissed as his clients are still within time to serve their Section 5 Notice.

8. The law is clear. Pursuant to Section 5(1) of the Claims Act, 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 Section 5 by the claimant to the Departmental Head of the Department responsible for justice matters or the Solicitor-General.

9. I am reminded by case authorities that giving a Section 5 Notice to the State under the Claims Act is a condition precedent to the validity of the action taken against the State, and if the Claims Act is not complied with, the Court has the discretion to strike out proceedings on its own motion. It does not have to wait for a party to apply to the Court. The Court should not take a back seat in such matters. It must be vigilant in its delivery of justice by ensuring that parties comply with stipulated, mandated procedures.

10. With no evidence on the Court file showing that a Section 5 Notice was given to the State, and based on the admission by the Plaintiffs’ lawyer that no Section 5 Notice was given to the State, I find that the Plaintiffs did not give any Section 5 Notice to the State before instituting the current proceedings. This amounts to an abuse of process.

11. The Court has various powers to dismiss actions. The Court can dismiss an action if the proceedings are an abuse of the process of the court. 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, the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be dismissed generally (National Court Rules, Order 12, Rule 40(1)(c)). The Court has the discretion.

12. In the present case, no Section 5 Notice was given to the State. It is appropriate in the circumstances to dismiss the entire proceedings as it is an abuse of the process of the Court. Pursuant to Order 12, Rule 40(1)(c) of the National Court Rules, I exercise my discretion and dismiss the entire proceedings for being an abuse of process.
13. The Plaintiffs shall pay the First, Third, Fourth and Fifth Defendants’ costs of the proceedings, which are to be taxed if not agreed to.

Court’s Formal Orders:

14. I order that:

1. The entire proceedings is dismissed for being an abuse of process.

2. The Plaintiffs shall pay the First, Third, Fourth and Fifth Defendants’ costs, which are to be taxed if not agreed to.

3. Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the National Court which shall take place forthwith.

The Court Orders accordingly.
________________________________________________________________
Kasito Lawyers: Lawyers for the Plaintiff
Sino & Associates Lawyers: Lawyers for the First Defendant