N10587

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.  251 OF 2023

BETWEEN:
CHRIS AGI GAIA
-Plaintiff-

AND
TEKI HIRU SUKA
-First Defendant-

AND
NATIONAL HOUSING COOPERATION
-Second Defendant-

Lae: Dowa J
2023:  17th & 24th November

PRACTICE AND PROCEDURE- application for dismissal of proceedings for abuse of process - Order 12 Rule 40 of the National Court Rules-issues raised in the pleadings were determined in earlier proceedings-principles of res judicata applied - clear case for summary dismissal-application granted. 

Cases Cited:
PNG Forest Products vs. State [1992] PNGLR 84
Ronny Wabia vs. BP Exploration Co. Ltd [1998] PNGLR 8 
Wabia vs. BP Petroleum (2019)) N4337
Mt. Hagen Urban LLG vs. Sek No. 15 (2009) SC1007 
National Provident Fund vs. Maladina & Others (2003) N2486 
 Wambunawa Holdings Ltd. vs. ANZ Bank (2020) N8310
Titi Christian v Rabbie Namaliu(1995),Unreported, Un-numbered Supreme Court Judgment in OS No. 2 of 1995
 National Airline Commission v Lysenko [1990] PNGLR 266
AGC (Pacific) Ltd v Sir Albert Kipalan (2000) N1944
Kundu Consultants Ltd v The State (2001) N2128
Telikom PNG Ltd v ICCC (2008) SC906

Counsel:
No appearance for the Plaintiff
T Suka, first Defendant in person
M Limu, for the Second Defendants

RULING

24th November 2023

1.	DOWA J:	The second Defendant applies for the dismissal of the proceedings under Order 12 Rule 40 of the National Court Rules on the grounds that the proceedings are an abuse of the process. 

Brief Facts

2.	The proceedings relate to a dispute of ownership of property, Allotment 36 Section 187, Lae, Morobe Province.  The Plaintiff alleges that the PNG Land Board granted a lease over the subject property to him on 23rd April 2019. He is currently awaiting the issue of the State Lease. Meanwhile the Defendants have wrongfully took possession of the property depriving him from the lawful use of the property. He has instituted the current proceedings seeking possessory rights over the property.

3.	The Defendants contest in their respective Defences that the Plaintiff has no proprietary rights over the property. The property is owned or managed by the National Housing Commission and in its discretion entered a tenancy agreement with the first Defendant who has immediate right to possession under the tenancy agreement. 

Application

4.	The second Defendant seeks dismissal of the proceedings under Order 12 Rule 40(1) of the National Court Rules for abuse of the process.   The second Defendant’s Notice of Motion was served on the Plaintiff’s Lawyers on 2nd November 2023(refer Affidavit of Service by Mathew Limu filed 24th October 2023,) The Motion was made returnable on 13th November 2023. The Plaintiff appeared without his lawyer. The Plaintiff requested for an adjournment and the Motion was adjourned to 17th November 2023 for hearing. Despite being aware of the hearing date, the Plaintiff and his Lawyer made no appearance on 17th November 2023 to oppose the application. The second Defendant proceeded with the application. The first Defendant supported the application for dismissal.

Evidence

5.	The 2nd Defendant relies on the affidavit of Andrew Augwi filed 24th October 2023.The first Defendant relies on her two affidavits filed 5th and 12th July 2023 respectfully. The Plaintiff filed two affidavits on 14th June 2023 and 5th September 2023. I will consider the Plaintiff’s affidavits too in the interest of justice despite his nonattendance in Court. 

Issues

6.	The issue for consideration is whether the proceedings be dismissed for being an abuse of the process. 

The law under Order 12 Rule 40 of the NCR.

7.	The application for dismissal is made under Order 12 Rule 40(1) of the National Court Rules. It reads:  
” 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.”

8.	The case law on Order 12 Rule 40 of the National Court Rules is well settled.  Refer:  PNG Forest Products vs. State (1992) PNGLR 84–85, Ronny Wabia vs. BP Exploration Co. Ltd (1998) PNGLR 8, Wabia vs. BP Petroleum (2019)) N4337, Mt. Hagen Urban LLG vs. Sek No. 15 (2009) SC1007, National Provident Fund vs. Maladina & Others (2003) N2486; and Wambunawa Holdings Ltd. vs. ANZ Bank (2020) N8310.

9.	The principles of law settled and emanate from the above cases are:

a.	A claim may be disclosing no reasonable cause of action if the facts pleaded does not clearly show all necessary facts and legal elements to establish a claim known to law.
b.	A claim maybe frivolous if it can be shown that it is obviously untenable that it cannot possibly succeed or is bound to fail it if proceeds to trial.
c.	Proceedings are vexatious where the case is a sham, amounting to harassment of the opposing party, or where the opposing party is put to unnecessary trouble and expense of defending the case. 
d.	The Court cannot readily dismiss a case for lack of disclosing a reasonable cause of action or for frivolity or abuse of process unless it is shown that the case is clearly untenable and that it is unlikely to succeed even it proceeds to trial.

10.	I will now proceed to consider the grounds raised by the second Defendant.

Abuse of the process
11.	The second Defendant, National Housing Corporation, relies on the affidavit of Andrew Augwi sworn 16th and filed 24th October 2023. Andrew Augwi is the Provincial Officer of the National Housing Corporation at its regional office in Lae.

12.	  This is the summary of Mr. Augwi’s evidence. He deposes that the said land is part of an Undeveloped lease (UDL)granted to the NHC and converted into the Self-Help Housing Scheme managed and administered by National Housing Corporation for the purposes of assisting low-income earners to build their own accommodations on land made available. The role of the NHC is to administer the Self-Help Housing Scheme and allocate blocks when available to tenants who enter into Tenancy Agreements with NHC. The NHC administers the blocks to ensure compliance of the terms and conditions of the tenancy agreements.

13.	The land was previously tenanted by one Mairon Sumi under a tenancy agreement dated 30th January 2012. Mairon Sumi relinquished his interest in January 2018 and transferred same to the first Defendant and her late husband, John Hiru. Thereafter the second Defendant entered a tenancy agreement with the first Defendant and her late husband John Hiru in January 2018.

14.	 The Plaintiff who resides at the adjoining property, allotment 37, resisted the first defendant from taking up possession, claiming he has an interest in the property. NHC came to learn then that the Plaintiff made a direct application to the Lands Department for the grant of Title to the property.  

15.	NHC then filed restraining proceedings in the District Court in proceedings-CIV No 69 of 2019-National Housing Commission and John Thomas Hiru v Chris Gaia. On 19th July 2019, the District Court granted the orders, restraining the Plaintiff from entering or interfering with the quiet enjoyment of the property by the complainants (now Defendants). The Plaintiff appealed the decision to the National Court in proceedings- CIA No 69 of 2019-Chris Gaia v National Housing Commission and John Thomas Hiru. On 30th November 2020 the National Court dismissed the appeal for want of prosecution. The first Defendant has since moved into the property and taken up possession.

16.	 Mr. Limu, counsel for the second Defendant, submits that the District and National Court have effectively dealt with the interest of the Plaintiff and therefore it is an abuse of the process for this Court to revisit the issues that have been dealt with. 

17.	  The first Defendant supports the submissions of the second Defendant. She also produced evidence of her own which confirms that the subject land is managed by National Housing Commission and that the Lands Department made an error in making a recommendation for the direct grant of the Title to the Plaintiff as he was not the sitting tenant. The grant was fraught with possible fraudulent activities and referred the matter to the Fraud Squad for investigation.

18.	The Plaintiff did not file any affidavit in response to the earlier proceedings to oppose the application. However, his evidence on the merits of the case is this. He applied for a direct grant of Title to the Lands Department, The Lands Department wrote to him on 23rd April 2019, advising his application was successful. Up to now he is not issued a Title and he is awaiting the issuance of the State Lease. Therefore, he claims, he has a better interest than that of the Defendants and seeks a declaration that he has a right to occupy and use the property. 

19.	 It is clear from the facts pleaded and evidence provided the parties to the proceedings have an interest of some sort in the property, allotment 36 section 187, Lae. 

20.	The Plaintiff was a successful applicant for the grant of a State Lease. However, he is not issued a State Lease. He cannot be recognized as owner for the purposes of sections 32 and 33 of the Lands Registration Act. Until such time when he is issued with the title, he is not a legal proprietor of the property.

21.	The first Defendant is a tenant under a tenancy agreement signed with the second Defendant and has the right to immediate possession and use of the property. 

22.	The second Defendant has the control and management of the property under the Self-Help Housing Scheme. It is a government sponsored scheme. The subject land was a part of a portion of land granted to NHC under Part X1 of the Land Act 1996 in the form of an Undeveloped Lease. Sections 111,112 and 113 of the Land Act are relevant and they read:
“ PART XI. – GRANT OF STATE LEASES OF IMPROVED GOVERNMENT LAND TO THE NATIONAL HOUSING CORPORATION.
111.	DECLARATION OF LAND BY MINISTER.
The Minister may, by notice in the National Gazette, declare Government improved residential land to be land to which this Part applies.
112.	CERTAIN PROVISIONS NOT TO APPLY.
Sections 70, 71, 74, 75, 84 and 95 do not apply to land the subject of a declaration under Section 111.
113.	MINISTER MAY GRANT LEASE.
The Minister may, in respect of land to which this Part applies, grant a lease to the National Housing Corporation on such conditions as he thinks proper.”

23.	It is arguable that the property being in the lawful custody of NHC is not available for direct grant of Lease either through tender or application by the Department of Lands without NHC’s consent. It is also arguable that the Plaintiff is not a qualified person under section 37 and 38 of the National Housing Corporation Act to be given priority over the first Defendant for eventual ownership of the subject property.

24.	 The sum of all matters discussed above brings home the conclusion that the first Defendant has a better interest in the land than that of the Plaintiff.

25.	 Now turning to the issue of res judicata raised by the second Defendant, it is important to consider the main reliefs sought by the Plaintiff. Reliefs No. 1 and 2 sought in the statement of claim are relevant and they read: 

“(1) A declaration pursuant to section 155(4) of the Constitution that the Plaintiff has the right to use and occupy the land described as section 187, allotment 36,3 Mile, Lae Morobe Province.
  (2) A declaration pursuant to section 155(4) of the Constitution that the Defendant does not have any right to enter and occupy the land described as section 187, allotment 36,3 Mile, Lae Morobe Province.”

26.	 Did the earlier Courts effectively deal with the issue raised in the proceedings. The District Court in proceedings CIV No 93 of 2019 made its decision on 9th July 2019. The order of 9th July 2019 reads: 

“1. Defendant is now restrained forthwith from going any way near or to develop the said land Section 187 allotment 36, gardenia Cree 3 Mile if he feels he had the right to do so can take the matter to the National Court to address his grievances for he and his agent, Associate or family members to enter the said property, if he is in breach he will be dealt with according to law.”

27.	When comparing the decision of 9th July with the reliefs 1 and 2 sought in the current proceedings, I form the view that they are one and the same. The District Court decision was made about three months after the PNG Land Board made its decision. The Court concluded that the current Defendants had a better proprietary interest in the property than that of the Plaintiff. The decision was appealed to the National Court and was dismissed for want of prosecution. The result is the District Court decision is valid and binding. 

28.	The law on the doctrine of res judicata is settled. The basic principles on the doctrine of res judicata are set out by the common law. They are adopted and applied in the cases; Titi Christian v Rabbie Namaliu (1995), Unreported, Un-numbered Supreme Court Judgment in OS No. 2 of 1995. National Airline Commission v Lysenko [1990] PNGLR 266; AGC (Pacific) Ltd v Sir Albert Kipalan (2000) N1944, Kundu Consultants Ltd v The State (2001) N2128 and Telikom PNG Ltd v ICCC (2008) SC906.

29.	 The basic principles emerge from these cases are that, for the defence of res judicata to succeed, a party relying on the doctrine must show:
       		1.    The parties in both cases are the same.
2. 	The issues(s) in both cases are the same.
3.	The previous judgment extinguished the foundation of the claim or the right to set up the action. The result is final and conclusive, and it binds every other Court.
			4.     A Court of Competent jurisdiction made the first decision.
30.	 In the present case, the parties and the issues are the same and the matter of controversy has been decided by the Court having competent jurisdiction. It is my considered view that the earlier decision of the District Court is binding and can only be set aside on appeal to the National Court. The appeal to the National Court was dismissed for want of prosecution rendering the lower Court decision undisturbed and effective.

31.	 I conclude based on the reasons and matters discussed above that the current proceedings are an abuse of the process. The Defendants have raised a meritorious argument in law which the Court cannot ignore and shall grant the orders sought in the interest of justice. While it is not desirable to terminate the Plaintiff’s proceedings early, the Court has a duty to protect its process. 

32.	 In arriving at this conclusion, I am mindful that the issue of ownership can become alive in the event of the Lands Department issuing a State Lease to the Plaintiff. Since the Lands Department has not proceeded with the issuance of title after the PNG Land Board decision, it is a matter for the Plaintiff to take it up with the Lands Department either administratively or by filing appropriate enforcement proceedings. Likewise the Defendants take all necessary steps to deal with the decision made by the PNG Land Board either administratively or by an action of their own.

33.   For now, I am inclined to grant the second Defendant’s application and thus, the proceedings filed by the Plaintiff must be dismissed for abuse of the process pursuant to Order 12 Rule 40 (1) (c) of the National Court Rules. 

Orders

34.      The Court orders that:

1.	The second Defendant’s application is granted.
2.	The Plaintiff’s proceeding is dismissed. 
3.	The Plaintiff shall pay the Defendants’ cost to be taxed, if not agreed. 
4.	Time be abridged.

Daniels & Associates Lawyers: Lawyers for the Plaintiff
M Limu -in-house lawyer: Lawyer for Second Defendant
Teki Hiru Suka:   First Defendant in person