Unreported National Court Decisions
N1824
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO. 1112 OF 1995
BETWEEN:
MENAPO TULIA AND OTHERS
 - PLAINTIFF -
AND:
EKE LAMA AND  OTHERS
- RESPONDENTS -
Goroka
Sawong J
10 July 1998
24 July 1998
PRACTICE AND PROCEDURE - Res judicata - Estoppel - claim for damages for raid on village by villagers from another village - separate causes of action -
Cases Cited
WS No. 968 of 1993 - undated judgement by Salika J
Counsel
Mr Zimike, for the Plaintiffs
Mr Kumura, for the Respondents 
24 July 1998
SAWONG J:  In this action the plaintiffs bring a representative action on behalf of the members of the Wiliri and Awari tribes and on their own behalf, for damages for destruction and loss of various properties, loss of production from business and mental distress.  The alleged destruction were said to have been committed by the 11 defendants named in the Writ of Summons. 
By a notice of motion the defendants move that whole of the proceedings be dismissed on the basis of either O. 11 R. 7 or O. 12 R. 40 of the National Court Rules.  These rules are in the following terms.
O. 11 R. 7
“7.      Setting Aside
(1)      The Court may, on motion by the person named in a summons, set aside the summons wholly or in part.
(2)      Notice of a motion under Sub-rule (1) must be filed and served on the party on whose request the summons was issued.”
O. 12 R. 40
“40.    Frivolity, etc.
(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.
(2)      The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).”
Essentially Mr Zimike and Mr Kumura relied on the principles of res judicata and or equitable estoppel.  The essence of their submissions was that whole claim or cause of action had been dealt with by the National Court previously and therefore  the present proceedings is an abuse of the court process.  There they relied on the undated decision of Salika J in WS 968 of 1993.
In that case (WS 968/93) the same plaintiff, as in the current proceedings, brought representative action against Mr Dick Mune, three policemen, Mr Eke Lama and the State.  Mr Lama was the fifth defendant in that proceeding.  On the application of the plaintiffs, he was removed from that proceedings as a defendant.  In the current proceeding he has now been named as First Defendant.  The cause of action in WS 968 and the current cause of action arose from the same incident.
Before I turn to the arguments and to the consideration of the decision in WS 968, I think it is appropriate to set out the proper and appropriate legal principle on the issue of whether the current proceedings is res judicata or not.
Mr Zimike and Mr Kumura (who appeared as a friend of the court) submitted that the principles of res judicata was applicable in the current proceedings.  Considerable reliance was placed on paragraphs 1528 and 1536 of Halsbury’s Laws of England, 4th edition to support their arguments.
In Halsbury’s Laws of England (4th ed.), vol. 16, para 1528, under the sub heading “Essentials of res judicata”  the editor says:
“In order that a defence of res judicata may succeed it is necessary to show not only that the cause of action was the same but also that the plaintiff had the opportunity to recovering and but for his own fault might have recovered in the first action that which he seeks to recover in the second.  A plea of res judicata must show either an actual merger or that the same point has been actually decided between the parties ....”
In the same text, at para 1536, under the sub heading “Cause of Action Merged in the Judgement”  the editor says:
“The defence of “judgement recovered”, arising as it does out of res judicata, has much in common with estoppel by record, although it is not founded upon it.  A plaintiff who has once sued a defendant to judgment cannot, while the judgement stands, though unsatisfied, sue him again for the same cause, not  because he is estopped from doing so (although he, as well as the defendant, is estopped from averring anything contrary to the record), but because the cause of action is merged in the judgement, which creates an obligation of a higher nature.  It is also probably true to say that a person who has once recovered judgement for a sum of money is estopped from averring that he ought to recover any further sum for the same cause of action”.  (emphasis added)
The submissions raised by the defendants are three fold.  I have briefly discussed the first part, that is that the current cause of action is the same as in WS 968.
The second leg of their submission was that the plaintiffs had the opportunity to recover in the first cause of action but he chose not to, and because of that he is barred from proceeding in the second or subsequent cause of action.  The third leg of their submission was that there was an earlier judgement against the villages of Wala village, which was still subsisting.
In my view these submissions overlap each other.  I therefore will not treat them separately.  In view of the submissions that were made, it is necessary to refer to and analysis what Salika J said in his decision.  At page 7, 9 and 10 of his decision, he makes references to “Villagers from Wala, Waru and Timbari”.  He says, at p. 7:
BACKGROUND
“The background of the case is that there was a death of one Pialo Kapia of Wala Village in the Pangia District of the Southern Highlands Province.  The people of Wala village believed that Pialo Kapias death was brought about by sorcery done by some of the plaintiffs.  It was because of that death that the villagers from Wala and policeman conducted a raid on the plaintiffs villages.  As a result of the raid, policemen and villagers from Wala burnt down houses and cut trees at orders of policemen.  There is no clear cut evidence whether the villagers and the policemen were acting together in concert and aiding and abetting each other.  This is important because the court has to determine what portion the defendants will be held responsible for since no Wala villagers are defendants.”
And p. 9, he says:
“On Saturday, the 20/01/90, policemen and villagers from Wala Village and other nearby villagers came to Ambu village.  The policemen and the villagers of Wala village set houses on fire, including his own and killed or carried away pigs, chickens and cassowaries.  Trade Store goods and goods from houses were looted by the police and villagers from Wala, Wanu and Timbari.”
And p. 10, he says:
“However I cut that in half because I am of the view that the Wala villagers should compensate for the other half.  This is because there is not sufficient evidence that the villagers and the policemen were aiding and abetting each other.  I reduce that amount to K2,143.50.”
It is also interesting to note that through out his judgement, the learned trial judge made awards against the Wala villages.  In other words the trial judge in his decision in WS 968 has already awarded damages against the defendants from Wala villagers.  There is no dispute that the awards of damages made by His Honour have remained unsatisfied and is subsisting.  
There is no dispute that the current cause of action is the same as the previous one in WS 968.  There is also no dispute the First Defendant is the same person named fifth defendant in WS 968. There is no dispute that he was removed as a party to the proceeding’s previously.
Applying the principles that I have referred to the facts of the present case, it is quite clear that the defence of res judicata has been made out.  It follows that I accept the application.
I order that the whole of the proceedings in this case be dismissed with costs.
Lawyers for the Plaintiffs: Paulus Dowa
Lawyers for the Respondents: Public Solicitors