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Lilo v Yiu [2018] PGNC 320; N7409 (10 August 2018)

N7409

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS No. 732 of 2017

BETWEEN
BETTY LILO For herself and on behalf of 18 others
Plaintiff

AND
PETER YIU, General Manager, Stettin Bay Lumber Company Limited
First Defendant

AND
STETTIN BAY LUMBER COMPANY LIMITED
Second Defendant

AND
YANJOL APIN, Registrar of Titles
Third Defendant

Kimbe: Miviri AJ
2018: 22^nd June

PRACTISE & PROCEEDURE – originating summons – notice of motion – O 12 r 40 – frivolity vexatious – O 4 r 36 – dismissal for want of prosecution – abuse of process – motion upheld –orders granted terms sought–costs in cause.

Cases cited:

Commissioner General of Internal Revenue v Bougainville Copper Ltd [2008] PGSC 13; SC920

Patterson v Lawyers Statutory Committee [ 2005] PGSC 3; SC822 Review Pursuant to Constitution Section 155(2)(b); Application by Herman Joseph Leahy [2006] PGSC 21; SC855

United States of America v WR Carpenters (Properties) Ltd [1992] PNGLR 185

Counsel:

G Linge, for First and Second Plaintiffs

P Mokae, for Respondent

RULING

10^th August, 2018

1. MIVIRI, AJ: This is the Ruling of the Court pursuant to a Notice of Motion of the First and Second Defendants filed the 13^th April, 2018 whereby the following orders are sought:
   
   • (i) Pursuant to Order 12 Rule 40 (1) of the National Court Rules and in the inherent powers of the Court in controlling proceedings before it, the entire proceedings be dismissed for disclosing no reasonable cause of action, for being frivolous and vexatious and an abuse of the Court process.
     
   • (ii) Alternatively entire proceedings are dismissed for Want of Prosecution pursuant to Order 4 Rule 36 of the National Court Rules.
     
   • (iii) Costs on Solicitor Client basis to Defendants if not agreed to be taxed.
     
   • (iv) Plaintiffs shall not commence further proceedings of the same or similar proceedings against defendants without first settling the costs of this proceeding in taxable form or agreed to by the parties.
     
   • (v) Time for entry of these orders be abridged to the date of settlement by the Registrar which shall take place forthwith.
     

Plaintiff’s case

2. The Plaintiffs have not appeared before me despite an Affidavit of Service dated the 11^th April, 2018 filed by the First Defendant of Deponent Constable Peter Males.
   
3. The file records of the court show that on the 8^th of June, 2018 this court presided by Justice Batari had appearances of Linge and Associates Lawyers per Jerry Linge appearing for the Plaintiffs and for the Defendants Patrick Mokae of Justin Talopa Lawyers appearing. The Court Records show this Notice of Motion was adjourned to the 22^nd June, 2018 for hearing. Allowance was made in so granting to allow the Plaintiffs opportunity to respond if they so elected to the motion moved by the Defendant.
   
4. On 22^nd June, 2018 Defendants have appeared with no appearance by Plaintiffs despite interparty appearances and directions made by court. Defendant has moved to secure the motion sought here. This is now almost two months since because the Defendant’s Motion is dated the 13^th April, 2018. No material to the contrary has been filed by the Plaintiff. There is nothing apparent or identifiable in respect drawn to the court by either party when the matter was initially filed up to the date of this hearing relating to the facts and circumstances of the case.
   

Defendant’s case

5. What the Defendants seek is whether it has been shown that this case is frivolous and vexatious and therefore should be discharged pursuant to the rules invoked set out above.
   
6. In support the Defendants rely on the Affidavit filed dated the 5^th April, 2018 of Peter Yiu particulars of which are as follows:
   

“I am the General Manager of Settin Bay Lumber Company Limited, Second Defendant in the proceedings. ... We have a certificate of title to a State Lease described as Portion 1668, Milinch Megigi, Fourmil of Talasea, and West New Britain Province (herein referred to as “the State Lease” within our company premises at Buluma. A true copy of that title is attached. On or about May 2016, we instructed our lawyers to file eviction proceedings at the Kimbe District Court against the same Defendants who are named herein this proceeding for illegally settling on our State Lease without our consent and or authority.

7. That the eviction proceedings in the District Court ordered in their favour ordering the Plaintiffs to vacate the subject State lease within 6 months. The order is under hand of District Court Magistrate Kivu dated the 10^th November, 2016 ordering the Defendants, the Plaintiffs in this proceeding to give vacant possession to the Complainants, the Defendants in the current proceedings within 6 months and by the 10^th May, 2017.
   
8. That order is current and is not appealed against nor is there a stay on its execution by the Plaintiffs against the Defendants. Defendants have therefore filed to dismiss the current Originating Summons as frivolous and vexatious relying on Order 12 Rule 40 (1) of the National Court Rules 1983.
   
9. The Plaintiffs Originating Summons filed 31^st October, 2016 claims that the Special Purpose lease on Portion 1668 Milinch Megigi. Fourmil Talasea being Volume 13 Folio 160 to be declared null and void by reason that it was acquired by irregular means and by fraud.
   
10. That the Third Defendant, Yanjol Apin Registrar of Titles removes the Second Defendant from the registry of the lease title. And that the aforementioned portion reverts to undeveloped Government land.
    
11. The Plaintiffs shall be entitled as customary owners to seek a declaration pursuant to Section 133 of the Lands Act for the portion 1668 to be declared as customary land; with the exclusion of any developed parts thereof for public purposes.
    
12. The Plaintiffs their agents, associates and family members shall not be ejected from portion 1668 pursuant to Summary Ejectment Act Ch. No. 202 and Section 145 of the Land Act is null and void.
    
13. Any further orders as the court deems fit.
    
14. These facts relied on in the affidavit of Peter Yiu are not countered by any evidence to the contrary from the Plaintiffs against the Motion of the Defendants. Consequently the evidence before the Court is that of the Defendants and the Court is bound to consider that evidence in the Motion that is moved by the Defendants.
    

Evidence Established

15. And this evidence establishes that in the way it is drafted the originating summons is instituting new proceedings not by way of appeal or a stay of the orders that have been attained by the defendants. Because an appeal is not de novo Commissioner General of Internal Revenue v Bougainville Copper Ltd [2008] PGSC 13; SC920 (3 July 2008). Here it is an originating summons not a notice of appeal. It is not an appeal nor is a motion to stay the orders initially obtained, Patterson v Lawyers Statutory Committee [2005] PGSC 3; SC822 (2 December 2005) the appeal was incompetent as it was not instituted by a notice of appeal. Further there was no right upon the Plaintiffs here to challenge the orders initially obtained by the Defendants when they did not challenge it by appeal. The converse is that the orders of the District Court are current and it is contemptuous for the Plaintiffs not to adhere to it or comply with it.
    
16. This is not a review as was done in Review Pursuant to Constitution Section 155(2) (b); Application by Herman Joseph Leahy [2006] PGSC 21; SC855 (15 December 2006) where points of law were referred to the Supreme Court for its determination on the powers of the Public Prosecutor to indict ex officio after refusal to commit the applicant for trial. It is an originating summons and precludes where there are substantial issues of fact because proceeding by way of originating summons is unsuitable where there are substantial disputes of facts to be determined and issues to be defined: United States of America v WR Carpenters (Properties) Ltd [1992] PNGLR 185 (29 June 1992).
    
17. Here to be customary owners facts must be pleaded to bring the matter within and an originating summons will not be the mode to elicit and to bring the matter before the court. This would be the same where it is sought to remove the Second Defendant from the registry of the lease title as that would require likewise the pleading of facts clearly and an originating summons will not be the mode to elicit as here.
    
18. Special purpose lease on Portion 1668 Milinch Megigi. Fourmil Talasea being volume 13 Folio 160 to be declared null and void by reason that it was acquired by irregular means and by fraud requires proper facts to be elicited to bring the matter properly before the court. That is not the case with the Originating Summons now before the Court. This becomes clearer when read with Order 12 Rule 40 of the National Court Rules.
    

Order 12 rule 40.

19. Order 12 Rule 40 (1) is in the following terms:
    

“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.

(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).”

Issue

20. Is there reasonable cause of action disclosed in the proceedings filed?
    
21. Whether the action filed by the Plaintiffs is frivolous and vexatious and should be discharged forthwith in accordance with this rule?
    
22. Whether the proceedings are an abuse of process of court?
    

Ruling

23. In the light of the discussion, the Notice of Motion of the First and Second Defendants are granted that there is no reasonable cause of action disclosed by the proceedings that have been filed.
    
24. And further the proceedings are frivolous and vexatious for the reasons set out above and are an abuse of process of court.
    
25. Costs will be in the cause.
    

Orders Accordingly.

__________________________________________________________________

Linge & Associate Lawyers: Lawyer for the Plaintiff Applicant

Justin Talopa Lawyers: Lawyer for the Defendant