N10563
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 437 OF 2019

LAE RENTAL HOMES LIMITED
Plaintiff

V
DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Defendant

And
OSWALD TOLOPA ACTING SECRETARY DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

And
HONOURABLE JUSTIN TKATCHENKO MP MINISTER FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

And
MONEY TALKS LIMITED
Fifth Defendant

Waigani: Miviri J
2023: 18th October, 3rd November

PRACTICE & PROCEDURE – Judicial Review – Notice of Motion– Order 12 Rule 40 & Order 16 rule 13 (13)(2)(a) NCR – Dismissal of Proceedings – Abuse of Process – Res Judicata – First Forfeiture – Second Forfeiture – National Court Decision Upheld In Supreme Court Appeal – Property Restored Plaintiff – No Administrative Implementation – Action Instituted Filed To Force Implementation – Proceedings Not Abuse of Process – Current Proceedings Same Issue of Forfeiture No 2 – Motion Refused – Costs Follow Event.

Cases Cited:
Lae Bottling Industries Ltd v Lae Rental Homes Ltd [2017] PGSC 43; SC1641
Lae Rental Homes Ltd v Seravo [2003] PGNC 33; N2483 
Lae Bottling Industries Ltd v Lae Rental Homes Ltd [2013] PGSC 64; SC1230
General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1992] PNGLR 331
Motor Vehicles Insurance (PNG) Trust Limited v. Yama Security Services Limited (2009) PGSC23; SC1004
Lae Bottling Industries Ltd v Lae Rental Homes Ltd [2011] PGSC 22; SC1120
Kenken v National Airports Corporation Ltd [2022] PGSC 52; SC2247
Kulunga v Vaki [2014] PGSC 31; SC1389
Kwimberi of Paulus M Dowa Lawyers v Independent State of Papua New Guinea [1998] PGSC 9; SC545
Telikom (PNG) Ltd v Rava [2018] PGSC 39; SC1694
Popuna v Owa [2017] PGSC 3; SC1564
Pruaitch v Manek [2019] PGSC 123; SC1884

Counsel:
M. Murray, for Plaintiff
A. Manase, for Fifth Defendant
R. Mobiha, for First, Second, Third & Fourth Defendants.

RULING

03rd November 2023

1.	MIVIRI, J: This is the ruling on the notice of motion of the fifth defendant of the 12th June 2023 who applies pursuant to Order 12 Rule 40 and Order 16 Rule 13 (13) (2) (a) of the National Court Rules for orders: 

(i)	Pursuant to Order 12 Rule 40 and Order 16 Rule 13 (13) (2) (a) of the National Court Rules, the proceedings be dismissed for being an abuse of process; and for being frivolous and vexatious, and for disclosing no reasonable cause of action in the Statement.

(ii)	 Pursuant to Order 16 Rule 13 (13)(2)(a) of the National Court, the proceedings be dismissed for being res judicata.

(iii)	Costs of this application to the Fifth Defendant.

(iv)	The time for the entry of these orders be abridged to the date of the settlement of these orders by the Assistant Registrar, which shall take place forthwith.

(v)	Any other orders the Court deems appropriate under the circumstances.

2.	Underlying the motion is the contention of the fifth defendant that the plaintiff has instituted by abuse of process, there is no reasonable cause of action disclosed. What he has pleaded instituting the proceedings is not within law. He has defied the law to institute these proceedings. It is a frivolous and vexatious cause of action. It must and ought to be dismissed in accordance with the Order and the Rules he sets out. Because there is really nothing to determine as it is the same parties with the same issues that were dealt with by this Court and the Supreme Court. There is nothing that can be determined here. It is Res Judicata. Because the proceedings arise from the second forfeiture of the State Lease by the State on the 13th December 2012 published in the National Gazette No. G481 ending the plaintiff's rights to the subject property section 65, lot 1 Lae, State Lease Volume 144 Folio 6. And because of that fact it was upon the plaintiff' to challenge the forfeiture under section 142 (1) of the land Act within 28 days after the forfeiture. But if he is late, he can seek extension to discharge. Here the plaintiff has resorted to filing Court proceedings.

3.	And in this regard the fifth defendant relies on the affidavit of Mathew Minape the managing director of the fifth defendant, sworn of the 08th June 2023 filed 12th June 2023. He deposes acknowledgment that there were two (2) forfeitures of the subject property, State Lease Volume 6 Folio 144 Section 65 Allotment 1 Lae. He details that the plaintiff was granted the subject property for a 99-year period. Title annexure “A” was issued to him five years later in 1996. Which was forfeited by the Secretary of the Department of Lands and Physical Planning John Painap on the 11th August 1997 for failure to pay the fees for the land grant and lease acceptance fees in the sum of K 86, 100. Which was the subject in court in OS No. 202 of 1999 culminating in annexure “G” Order of this Court dated 27th October 2003 entered of the 28th October 2003. 

4.	These stated, “the purported revocation of the grant of title in respect of section 65 Allotment 1 Volume 144 Folio 6 Lae Morobe Province, to Lae Rental Homes Ltd, by the then Minister for Lands Sir Albert Kipalan KBE LLB, on an unspecified date in April 1996, was improperly issued, and is therefore null and void ab initio;

5.	The subsequent forfeiture of the Plaintiff’s title to the Land known as section 65 allotment 1 Volume 144 Folio 6 Lae Morobe Province, was in breach of the Act and is therefore null and void ab initio;

6.	The decision number 1999 by the Land Board communicated to the Plaintiff by letter dated 24th March 1999 allocating the land section 65 allotment 1 Volume 144 Folio 6 Lae Morobe Province to Lae Bottling Industries limited, was not arrived at, or made in accordance with the provisions of the Land Act and is illegal and void ab initio.

7.	The dismissal of the Plaintiff’s Appeal against the Land Board decision referred to above is null and void ab initio, as it was arrived at without good reasons, and in the absence of transparency and principles of good governance.” 

8.	This decision restored the plaintiff to being the title holder yet again. Which is also the evidence in the affidavit of Winston Nenjip sworn of the 08th April 2022, filed of the 11th April 2022. It is undisputed by both these affidavits from either side of the case, that the first forfeiture took place on 03rd December 1997, notice to show cause of which was issued of the 11th August 1997. What was instituted by the Plaintiff leading to the decision of the Lae National Court made on 8 April 2016 in proceedings commenced by OS No.49 of 2015, Lae Rental Homes Limited v Lae Bottling Industries Ltd & Others, became the subject of the appeal in SCA No. 61 of 2016 Lae Bottling Industries Limited & Money Talks Limited & Mathew Minape v Lae Rental Homes Limited & Romily Kila Pat & 2 ors (08 September 2017) per David, Murray, Pitpit JJ. Which was formally reported as Lae Bottling Industries Ltd v Lae Rental Homes Ltd [2017] PGSC 43; SC1641 (28 September 2017). That decision resulted in the orders; (a) The appeal is upheld. (b)	The National Court decision and orders of 08th April 2016 are quashed. (c) The entire National Court proceedings, OS No.49 of 2015, Lae Rental Homes Limited v Lae Bottling Industries Ltd & Others filed on 11 February 2015 are dismissed under Order 12 Rule 40 of the National Court Rules. (d) The first respondent shall pay the costs of the appellants and the second, third and fourth respondents, to be taxed, if not agreed.

9.	What is clear from this decision is that Lae Rental Homes Ltd v Seravo [2003] PGNC 33; N2483 (27 October 2003) which decision was the subject of an appeal to the Supreme Court in Lae Bottling Industries Ltd v Lae Rental Homes Ltd [2013] PGSC 64; SC1230 (30 August 2013), was not disturbed in any way at all. The National Court decision and orders reconfirmed by the Supreme Court remained intact. The dismissal was the application to reopen by slip rule application. That is apparent from the observation made by the Court in dismissing the application stating, “11. Furthermore, when the failure by the applicant to comply with Court's directions for over four months without any reasonable explanation is seen in the light of the whole of the circumstances, the resultant delay is extraordinarily serious especially given that the applicant has applied to re-open the case which had already been dismissed by the National Court and subsequently by the Supreme Court. This in our opinion placed a heavy and onerous responsibility on the applicant to ensure that it complied strictly with the directions of the Court, the Rules of Court and the practices and procedures of the Court. It was in the interest of the public that the application was duly dispatched and brought to finality within a reasonable time and with minimum delay. This responsibility lay on the applicant: General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1992] PNGLR 331 at 334 and Motor Vehicles Insurance (PNG) Trust Limited v. Yama Security Services Limited (2009) PGSC23; SC1004. It is to be further noted that the lack of reasonable explanation does not relate only to the applicant's failure to comply with the Court's directions, it also relates to the failure by the applicant's lawyer Mr. Levy to attend the directions hearings on 13 and 20 February 2012. We find these defaults and non-compliance intentional and contumelious.”

10.	This observation of the Supreme Court in my view gives light to the fact that this is an application made for dismissal at the insistence of the applicant referred to above, who is now making this application. That record speaks to the contrary about the applicant. It clearly shows that he is not coming before this Court with clean hands to move as he does. His insistence to challenge the fact of the matter in law is that the present action is firm because the endorsement of the decision and the orders of the Supreme Court confirming the decision of Justice Kirriwom OS. 202 OF 1999 is intact. What was dismissed was OS No.49 of 2015 in its entirety. 

11.	So, the orders made by Justice Kirriwom at first instance confirmed by the Supreme Court in Lae Bottling Industries Ltd v Lae Rental Homes Ltd [2011] PGSC 22; SC1120 (2 September 2011) are intact and must be enforced against the defendants forthwith. They have not been set aside nor have they been varied. In law these orders firm out that the Plaintiff is in law at liberty to institute enforcement of those orders. They are lawful orders of the Supreme Court directed at the defendants to comply forthwith. Administrative action liaison has been made by the plaintiff with the relevant defendant department servants and employees to implement those orders endorsed by the Supreme Court set out at the initial of this Judgment above. The affidavit of Winston Nenjipa of the 08th April 2022 filed 11th April 2022 sets all out very well. And it remains that these are orders of the highest Court of the land enforceable in every sense, unless varied or set aside in that Court not this Court, the National Court: Kenken v National Airports Corporation Ltd [2022] PGSC 52; SC2247 (26 May 2022).

12.	But it remains within the realm and discretion of the plaintiff to immediately institute attention of the Supreme Court to enforce its orders set out above. Orders of the Supreme Court are non-negotiable between the parties at first instance confirmed on appeal: Kulunga v Vaki [2014] PGSC 31; SC1389 (2 October 2014). It is contempt of court to cause a draft consent order to be delivered to a Judge who had reserved his ruling on the stay application, which: interfered with the Chief Justice's decision on the stay application; presented a real risk of interference with the due administration of justice; and interfered with the due administration of justice.” This is now open in the hands of the plaintiff to institute against the defendants bearing in mind the discussion of the law of contempt of Court in Kwimberi of Paulus M Dowa Lawyers v Independent State of Papua New Guinea [1998] PGSC 9; SC545 (27 March 1998). That was against a lawyer, but it is relevant for the consideration of the enforcement of the orders of the Supreme Court here.

13.	This is therefore not the situation that would warrant dismissal of the proceedings as pleaded observed in Telikom (PNG) Ltd v Rava [2018] PGSC 39; SC1694 (13 July 2018), or Popuna v Owa [2017] PGSC 3; SC1564 (22 February 2017) or Pruaitch v Manek [2019] PGSC 123; SC1884 (6 December 2019). It is not an action by itself but seeks to bring out what is clear the purported second forfeiture. In my view in the light of the Supreme Court confirming the orders of the National Court presided by Justice Kirriwom, it is the same property section 65, lot 1 Lae, State Lease Volume 144 Folio 6. And against the same parties both ends of the case. And the orders of the Supreme Court in my view lays the matter to rest. It would be of no consequence to maintain the second proceeding against the second forfeiture. As the interpretation firmed by the Supreme Court of that decision at first instance by the National Court leaves no utility in maintaining. Because the answer to those proceedings has been answered and laid out bare. The position between the parties in the dispute has been settled by the Supreme Court.

14.	Yes, several other proceedings have been filed by the plaintiff, but they are of no consequence when seen in the light of the two proceedings that have come to the Supreme Court. I have set them out to show that the other proceedings are of no consequence read in the light of these two that have come out with Supreme court Orders. One affirms the title to the subject property upon plaintiff resting all. The same defendants feature in the action here on the second forfeiture. With the Supreme Court confirming they must read and accord in that light. Here dismissal will not take place as pleaded. Rather for the defendants to implement the orders of the Supreme Court particulars set out above: SC1120 (2 September 2011). And in this regard consider the Judgement at length so as to consider their positions in law in respect of this proceedings. 

15.	On the converse these are Orders of the Supreme Court that must be enforced at the discretion of the plaintiff. And it is not in the hands of the National Court to dismiss the orders of the Supreme Court. There is no power to. The aggregate is the motion of the applicant fifth defendant is without merit. It must and will be dismissed with costs following the event forthwith.

16.	Costs are discretionary upon the Court, here it will follow the event. There will be no specific orders relating in view of all set out above.

17.	The formal orders of the Court are:

(i)	The Notice of motion is without merit.
(ii)	It is refused and dismissed forthwith.
(iii)	Costs will follow the event forthwith. 

Orders Accordingly.
__________________________________________________________________
Murray & Associate: Lawyers for the Plaintiff/Applicant
Office of the Solicitor General: Lawyers for First, Second, Third, Fourth Defendants
Manase & Co Lawyers: Lawyers for the Fifth Defendant