N10702
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.  18 OF 2022

BETWEEN:
VITUS TOVEE
-Plaintiff-

AND
KITAN NGOMBA in his capacity as the Morobe Provincial Surveyor
-First Defendant-

AND
JONAH SUVI in his capacity as the Lands Advisor, Morobe Division of Lands
-Second Defendant-

AND:
DEPARTMENT OF LANDS AND PHYSICAL PLANNING
-Third Defendant-

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
-Fourth Defendant-

AND
Mc RIDDY OKOPA
-Fifth Defendant-

Lae: Dowa J
2024:  16th February & 26th March

PRACTICE AND PROCEDURE- application for dismissal of proceedings want of reasonable cause of action- Order 12 Rule 40 of the National Court Rules-consideration of relevant principes not clear case for summary dismissal-application refused.
SETTING ASIDE RESTRAINING ORDERS-where interim restraining orders granted on misleading facts-order tend to conflict with existing orders in related proceedings-Court has discretion to set aside or vary the orders. 
SECURITY FOR COST-Where a party demonstrates a want of commitment in his conduct, it is appropriate to make an order for security for costs-security for costs ordered. 

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
Yarlett v New Guinea Motors [1984] PNGLR 155

Counsel:
E Tienare, for the Plaintiff
S Maliaki, for the First, Second, Third and Fourth Defendants 
L Vava, for the Fifth Defendant

RULING

26th March 2024

1.	DOWA J:	This is a ruling on the 5th Defendant’s application for dismissal of proceedings for disclosing no reasonable cause of action and other related interlocutory orders. 

Brief Facts

2.	The substantive proceedings relate to a dispute of ownership of property, Allotment 153 Section 38, Lae, Morobe Province.  In November 2012 the PNG Land Board granted to the Plaintiff a State Lease over a property described as Allotment 150 Section 38, Lae Morobe Province, State Lease Volume 20 Folio 257. The Plaintiff built a house on the said land. 

3.	On 17th July 2013, the 5th Defendant was granted a State Lease over Allotment 153 Section 38, Lae Morobe Province State Lease Volume 20 Folio 207. 

4.	 It was subsequently found out that the Lands Department made a mistake in granting the Sate Lease to the Plaintiff over a property that did not exist. Allotment 150 does not exist, but the State Lease covers or is part of Allotment 153, the property registered in the name of the 5th Defendant. On 22nd May 2014, the Plaintiff and the 5th Defendant were advised by the first Defendant of the mistake.

5.	Early 2017, the 5th Defendant instituted proceedings for possession against the Plaintiff in proceedings, OS No 456 of 2017.

6.	On 19th September 2017, the second Defendant wrote to the Plaintiff and the 5th Defendant, apologizing for the mistake. The Defendants advised them that the Department of Lands made an administrative decision to allow the Plaintiff to continue occupation at Allotment 153 while they look for an alternative vacant land for the 5th Defendant. The Lands Officials requested the Plaintiff and the 5th Defendants to surrender their respective Titles for them to rectify the problem. As per request the Plaintiff surrendered his title while the 5th Defendant did not. 

7.	Instead of settling the issue through the administrative process, the 5th Defendant continued with the proceedings in the National Court for possession in proceedings, OS No 456 of 2017. On 20th March 2020 the National Court decided, declaring the Plaintiff as owner of Allotment 153 Section 38 Lae and directed the Plaintiff to give up possession. The 5th Defendant is yet to take up possession, and the Plaintiff is still the occupant.

The Current Proceedings

8.	On 1st February 2022, the Plaintiff instituted the current proceedings against the first, second and third Defendants for neglect of duty resulting in him suffering loss of the title and the property he developed. 

9.	A year later, on 22nd February 2023, the PNG Land Board, as promised. granted a second or alternative State Lease to the 5th Defendant over Land described as Allotment 60 Section 186, Boundary Road, Lae Morobe Province, State Lease Volume 30 Folio 42. 

10.	The Plaintiff, after learning of the second title being granted to the 5th Defendant, as per the administrative decision of the first, second and third Defendants, added the 5th Defendant as a party to the proceedings. The Plaintiff also applied for and was granted orders on 14th July 2023, staying the execution of the eviction orders until final determination of the current proceedings.

11.	The 5th Defendant filed a Defence pleading inter alia that: a) the Plaintiff is illegally occupying the 5th Defendant’s property, b) that the Plaintiff knew that an error was done to the description of the property and that there is no Allotment 150 and yet chose to build on Allotment 153 and c) the Plaintiff may bring an action for damages against the first and second Defendants for the mistakes but not the 5th Defendant who is innocent.  

The 5th Defendant’s Application.

12.	 By Notice of Motion, the 5th Defendants seeks the following orders:

1.	Pursuant to order 12 Rule 40 of the National Court Rules, the proceedings against the Fifth Defendant be dismissed for disclosing no reasonable cause of action.

2.	Pursuant to Order 4, Rule 49(9)(4) and Order 12, Rule 1 and S.155(4) Const. Of the National Court Rules, the stay order of 14.07.2023 be set aside forthwith.

3.	Alternatively, the Fifth Defendant be removed as a party to the proceedings pursuant to Order 5, Rule 9 of the National Court Rules.
4.	Alternatively, the whole of this proceeding be stayed pending payment of K30,000.00 as security of costs by the Plaintiff pursuant to Order 14, Rule 25 of the National Court Rules.

Evidence

13.	The 5th Defendant relies on the Affidavit of McRiddy Okopa sworn and filed 1st December 2023 and other evidence filed by the first and second Defendants. The Plaintiff opposes the application relying on various affidavits filed in the proceedings. I will refer to the details of evidence later in my ruling.

Issues

14.	The issues for consideration arising from the application are: 

1.Whether the proceedings against the Fifth Defendant be dismissed for disclosing no reasonable cause of action pursuant to Order 12 Rule 40 of the National Court Rules.

2.Whether the stay order of 14.07.2023 be set aside forthwith pursuant to Order 4, Rule 49(9)(4) and Order 12, Rule 1 of the National Court Rules, and S.155(4) Constitution.

3. Whether, in the alternative, the Fifth Defendant be removed as a party to the proceedings pursuant to Order 5, Rule 9 of the National Court Rules.
4. Whether, in the alternative, the whole of this proceeding be stayed pending payment of K30,000.00 as security of costs by the Plaintiff pursuant to Order 14, Rule 25 of the National Court Rules.

	Consideration of the issues
          
1.	Whether the proceedings against the Fifth Defendant be dismissed for disclosing no reasonable cause of action pursuant to Order 12 Rule 40 of the National Court Rules.

15.	The 5th Defendant submits the Plaintiff’s pleadings in the statement of claim does not disclose any reasonable cause of action.  In particular, the 5th Defendant is strongly arguing that the Plaintiff is not asserting his rights or challenging the 5th Defendant’s proprietary rights over land which he is now occupying which has been determined in the 5th Defendant’s favour in proceedings OS No 456 of 2017.The Plaintiff’s action is for negligence against the first and second Defendants as officers of the Department of Lands and the 5th Defendant has been improperly joined as a party in the proceedings.

16.	 In response, the Plaintiff submits that the Plaintiff is a necessary party because the first and second Defendants, in realizing the mistakes made, have decided to resolve the issue administratively. That is, the Plaintiff would remain on the property while the 5th Defendant is to be given a new property. That administrative decision was implemented or came to fruition on or about February 2023 when the 5th Defendant was given another State Lease in property described as Section 186 Allotment 60, Lae, Morobe Province. Counsel for the Plaintiff submits that although the current pleadings do not disclose these facts, they intend to ask the Court to amend the statement of claim to reflect this. 

The law under Order 12 Rule 40 of the NCR.

17.	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.”
18.	 The caselaw 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.

19.	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.

20.	I will now proceed to consider the grounds raised by the fifth Defendant for the dismissal.

21.	 It is clear from the facts pleaded and evidence provided that the Plaintiff and the fifth Defendant have an interest in the property, Allotment 153 Section 38, Lae. The 5th Defendant is the holder of a State Lease, while the Plaintiff has his house on the property.

22.	The Court notes the Plaintiff has not specifically pleaded a cause of action in the statement of claim against the 5th Defendant. The proceedings were originally brought against the first and second Defendants for negligence. The fifth Defendant was joined as a Defendant, after the Plaintiff learnt that the 5th Defendant was granted another State Lease early last year (February 2023) which provides a leeway for the Plaintiff to claim ownership to the property, Section 38 Allotment 153, Lae, through the administrative process facilitated by the first, second and the third Defendants.

23.	While the current pleadings in the statement of claim do not disclose a cause of action against the 5th Defendant, the Court is reluctant to dismiss the proceedings against the 5th Defendant. The Court notes the lack of pleadings can be overcome by an amendment to the statement of claim which the Plaintiff is prepared to do.

24.	 The Court’s decision is based on the evidentiary matters filed in Court by the parties which to a greater extent not disputed. The Court repeats the facts to highlight the complexity of the dispute.

25.	The Plaintiff applied for and was granted, first in time in November 2012, a State Lease by the PNG Land Board over a property described as Allotment 150 Section 38, Lae Morobe Province State Lease Volume 20 Folio 257. He was shown the physical site by the first and second Defendants, as officers of the Department of Lands. The Plaintiff built a house on the said land. It is open to argument that the Plaintiff did not know that he was building his house on part of Allotment 153 Section 38, Lae, although this is now disputed by the Defendants.

26.	The 5th Defendant applied for and was granted, next in time on 17th July 2013, a State Lease over Allotment 153 Section 38, Lae Morobe Province State Lease Volume 20 Folio 207. 

27.	 It was subsequently found out that the Department of Lands and Physical Planning made a mistake in granting the Sate Lease to the Plaintiff over a property that did not exist. Allotment 150 does not exist, but the State Lease covers or is part of Allotment 153. On 22nd May 2014, the Plaintiff and the 5th Defendant were advised by the first Defendant of the mistake.

28.	On 19th September 2017, the second Defendant wrote to the Plaintiff and the 5th Defendant, apologizing for the mistake. The Defendants advised them that the Department of Lands made an administrative decision to allow the Plaintiff to continue occupation at Allotment 153 while they look for an alternative vacant land for the 5th Defendant. This was because the Plaintiff has already constructed his house on the property. The Lands Officials requested the Plaintiff and the 5th Defendants to surrender their respective Titles for them to rectify the problem. As per request the Plaintiff surrendered his title, but the 5th Defendant did not. 

29.	On 22nd February 2023, the PNG Land Board, as promised, granted a second or alternative State Lease to the 5th Defendant over land described as Allotment 60 Section 186, Boundary Road, Lae, Morobe Province, State Lease Volume 30 Folio 42. 

30.	The grant of the alternative State Lease to the 5th Defendant has now changed the dynamics of the dispute. The status quo has shifted more in favour of the Plaintiff. If all things go according to plan as proposed by the Department of Lands, the Plaintiff shall retain the property, Allotment 153 Section 38, Lae while the 5th Defendant takes up the new property, Allotment 60 Section 186, Lae. 

31.	However, the evidence shows the 5th Defendant is reluctant to relinquish the earlier State Lease over property, Allotment 153 Section 38 Lae to the Plaintiff. The 5th Defendant deposes the new land is small and mountainous and remains adamant that he retains the property Allotment 153 Section 38 which is bigger and on a flat land. After all, he argues, his proprietary right over the earlier property was affirmed and given due recognition by the National Court in proceedings OS No 456 of 2017.  

32.	 At this juncture, it is important to note the 5th Defendant has not shown any willingness to surrender the new title to the Department of Lands, nor is he prepared to relinquish or transfer the title to the Plaintiff.

33.	In my view, the actions or lack thereof taken by the parties, especially by the 5th Defendant complicates the dispute and will require judicial determination after a proper trial. If the Court dismisses the proceedings against the 5th Defendant, it is arguable that the 5th Defendant will enrich himself with the two residential State Leases while the Plaintiff will be left with nothing. Not only that, but the Plaintiff is also likely to lose the house he built on the property which is valued at K 253,000. Added to this, it is arguable that the Plaintiff may not succeed in his claim against the first, second and the third Defendants in the light of the fact that they have administratively corrected their mistakes by the issuance of the new title to the 5th Defendant. The Defendants have clearly demonstrated their unwillingness to concede liability in their Defence and evidence filed so far.

34.	In the circumstances, this is not a clear case for summary dismissal. The Plaintiff must not be prematurely driven from the judgment seat. Justice demands that all parties in the present case be heard or at least given an opportunity to be heard. The lack of pleadings in the current statement of claim against the 5th Defendant can be cured or overcome by an amendment to the statement of claim which, the Court notes, the Plaintiff is willing to do. 

2.Whether the stay order of 14.07.2023 be set aside pursuant to Order 4, Rule 49(9)(4) and Order 12, Rule 1 of the National Court Rules, and S.155(4) Constitution.

35.	The second relief sought by the 5th Defendant in the Notice of Motion is to set aside the stay orders of 14th July 2023. The 5th Defendant submits that the Plaintiff misled the Court when he obtained the restraining orders on 14th July 2023. The orders restrain the 5th Defendant from entering or dealing with the property, Allotment 153, section 38, Lae. The Defendant submits that the Plaintiff misled the Court in stating there were two titles on the property when it is not. The 5th Defendant submits further that the 5th Defendant has been declared the only owner with a consequential order for possession in the proceedings OS No 456 0f 2017 and the orders cannot be set aside or stayed except by way of appeal to the Supreme Court.

36.	I perused the orders issued on 14th July 2023, and note the descriptions given for the property is incorrect. The orders should have been issued for Allotment 153 Section 38, Lae. This can be resolved by varying the orders. However, the Court notes there is another hurdle in respect of the orders of 14th July 2023. It appears some parts of the orders have the effect of staying the orders given on 20th March 2020 in proceedings, OS No 456 of 2017. It is arguable that the Court was misled in granting the restraining orders. The fault lies on all parties as these orders were granted after the hearing counsel for all the parties named in the proceedings and no one alerted the Court of the possible abuse of process. From this point of view, it is open to the Court to set aside or vary its orders. However, it is not smooth sailing. Considering the options, I am mindful of the subsequent administrative decision made by the first and the second Defendants and the Department of Lands in granting an alternative State Lease to the 5th Defendant. In granting the second State Lease, it is open to argument that, the next step would be for the cancellation of the fifth Defendant’s title and for the issuance of a new title to the Plaintiff over the subject property. That process, it seems, is yet to be completed to resolve the matter administratively. 

37.	The Plaintiff should have been more aggressive in following up with the progress in resolving this matter administratively with the Department of Lands. Even in this proceeding, it seems, the Plaintiff has not been proactive in protecting his interests. He was granted the restraining orders on 14th July 2023 after the fifth Defendant was joined   a party in the proceedings. He made no attempt to amend the statement of claim to mount a cause of action against the fifth Defendant and for the continuity of the restraining orders. The interlocutory orders must rest on a properly pleaded cause of action, and not disjointed fragmented information.

38.	As a matter of principle and to maintain judicial comity, the Court will vary its orders issued on 14th July 2023 so as not to directly offend or conflict with the orders issued in proceedings, OS No 456 of 2017 in the interest of justice and equity. At this juncture, the fifth Defendant is reminded that the administrative decisions were made in 2017 that the property Allotment 153 section 38 Lae would remain with the Plaintiff which the 5th Defendant is aware.  The Court therefore cautions the fifth Defendant to remain calm and restrain himself from executing the orders of 20th March 2020 in the light of the administrative decisions made by the Department of Lands. After all, it is the State that owns all State land, managed, and controlled by the Department of Lands, and it is the State that granted the parties the right to own a State Lease which is a very rare privilege only a few enjoy. The parties in the proceedings need to embrace the kind gesture and show reciprocal appreciation and corporation.

39.	As pointed out in paragraph 30 above, the status quo has changed since the decision of 20th March 2020. The Plaintiff’s interest in the property Allotment 153 Section 38 Lae has increased whilst the 5th Defendant’s decreased by the grant of the alternative State Lease. To maintain the current status quo, the 5th Defendant be restrained from executing the warrant for possession until the final determination of the proceedings.

3. Whether the Fifth Defendant be removed as a party to the proceedings pursuant to Order 5, Rule 9 of the National Court Rules.

40.	The 5th Defendant submits that he be removed as a party to the proceedings under Order 5 Rule 9 of the NCR because he is not a necessary party. 

41.	 Order 5 Rule 9 of the NCR gives the Court a discretion to remove a party to the proceedings where he has been improperly or unnecessarily joined. In my view, despite the lack of pleading a cause of action against him, the 5th Defendant is a necessary party and has been properly joined in the proceedings for the same reasons given in my ruling on the first issue in paragraphs 13 to 32 of the judgment.

4. Whether the whole of this proceeding be stayed pending payment of K30,000.00 as security of costs by the Plaintiff pursuant to Order 14, Rule 25 of the National Court Rules.

42.	The 5th Defendant submits that the proceedings be stayed pending payment K 30,000.00 into Court by the Plaintiff for security for costs pursuant to Order 14 Rule 25 of the National Court Rules. The 5th Defendant reasons that the Plaintiff may not settle any costs if he fails in this proceeding against him. This is because the Plaintiff has not paid the previous taxed cost of K 28,700.00 awarded in OS No 456 of 2017.

43.	 The relevant law is Order 14 Rule 25 of the National Court Rules. Rule 25 reads:

“25. Cases for security. (53/2)
Where in any proceedings, it appears to the Court on the application of a defendant
(a) that a plaintiff is ordinarily resident outside Papua New Guinea; or
(b) that a plaintiff is suing, not for his own benefit, but for the benefit of some other person and there is reason to believe that that plaintiff will be unable to pay the costs of the defendant if ordered to do so; or
(c) subject to Sub-rule (2), that the address of a plaintiff is not stated or is mis-stated in his originating process; or
(d) that a plaintiff has changed his address after the commencement of the proceedings with a view to avoiding the consequences of the proceedings,
the Court may order that plaintiff to give such security as the Court thinks fit for the costs of the defendant of and incidental to the proceedings and that the proceedings be stayed until the security is given.
(2) The Court shall not order a plaintiff to give security by reason only of Sub-rule (1)(c) if it appears to the Court that the failure to state his address or the mis-statement of his address was made without intention to deceive.”

44.	None of the grounds listed in Rule 25 (1) exist in the present case. Even where the above circumstances exist, there are other considerations to be met before a Court exercises his discretion to order security for costs. 

45.	In Yarlett v New Guinea Motors (1984) PNGLR 155, McDermott J (as he then was) lists certain factors to be considered which are:  

“(1) An application for security for costs should be made promptly and before considerable expense is incurred.
Pooley’s Trustee v. Whetham (1886) 33 Ch. 76; King v. The Commercial Bank of Australia Ltd [1921] V.R. 48; Smail v. Burton; Re Insurance Associates Pty Ltd (In Liquidation) [1975] VicRp 76; [1975] V.R. 776, followed.
(2) An order for security for costs is within the discretion of the court and all the circumstances of the case must be considered.
(3) In determining whether an order for security of costs should be made the following matters, inter alia, may be taken into account:
(a) whether the claim is bona fide;
(b) whether there is a reasonably good prospect of success;
(c) whether there is an admission on the pleadings or elsewhere that money is due;
(d) whether money has been paid into account;			
(e) whether the application for security is being used oppressively;

(f) whether want of means has been brought about by any conduct of the parties.”

46.	In the present case, the main complaint is that the Plaintiff has not settled the 5th Defendant’s taxed cost of K 28,700.00 in proceedings- OS No 456 of 2017. The Plaintiff has not demonstrated how he will settle the 5th Defendant’s taxed costs in OS No 456 of 2017, except for some correspondence showing an undertaking by the Minister for Lands for the settlement of the fees. As for future costs, the Plaintiff has demonstrated that he has an arguable case, and most of the evidence is filed and the matter can be listed for hearing soon subject to the filing an amended statement of claim. Whilst it is arguable that an order for security for cost may be oppressive, it is appropriate for the Plaintiff to provide security for cost due to his failure to pay for the taxed costs in the earlier proceedings between the parties. As the matter has progressed into the listing stage, I will consider a lessor sum than the amount proposed by the fifth Defendant and for that, a sum of K 20,000.00 will suffice. 

Conclusion

47.	 In conclusion, the Court will issue orders and directions based on the discussions and reasons given in respect of the issues raised in the proceedings. 

Orders

48.      The Court orders that:

1.	The fifth Defendant’s application for dismissal of the proceedings under Order 12 Rule 40 of the National Court Rules is refused. 

2.	The fifth Defendant’s application for his removal as a party to the proceedings under Order 5 Rule 9 of the National Court Rules is refused.

3.	The interlocutory orders issued on 14th July 2023 is varied in the following terms: 
i.	The 5th Defendant is restrained from selling or demolishing or dealing with the property described as Allotment 153 Section 38, Lae, Morobe Province, in State Lease Volume 20 Folio 207 pending the final determination of the proceedings.

ii.	The 5th Defendant is restrained from evicting the Plaintiff until final determination of the proceedings conditional on the Plaintiff paying security for costs.

iii.	The 5th Defendant is restrained from selling, surrendering the State Lease to the State, or dealing with the property described as Allotment 60 Section 186, Boundary Road, Lae, Morobe Province, in State Lease Volume 30 Folio 42 pending the final determination of the proceedings.

4.	Leave is granted to the Plaintiff to file and serve an amended Writ of Summon reflecting the issues highlighted in this ruling within 21 days from the date of this order.

5.	The Plaintiff shall pay K 20,000.00 as security for costs within 30 days from date of this order.
6.	The matter will return to Court on 6th May 2023 for listing.
7.	The cost of the application be paid by Plaintiff. 
8.	Time be abridged.

Public Solicitor: Lawyers for the Plaintiff
Solicitor General:     Lawyers for First, Second, Third and Fourth Defendants
Luke Vava Lawyers:   Lawyers for the Fifth Defendant