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Kanai v Justine [2021] PGNC 117; N8834 (5 March 2021)

N8834

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 297 OF 2020

BETWEEN:
KUNIBERT KANAI
Plaintiff

AND:
MR. JUSTINE as the Camp Manager (King)
First Defendant

AND:
MILLION PLUS CORPORATION LTD
Second Defendant

Kokopo: Suelip AJ
2020: 10^th December
2021: 5^th March

CIVIL – Practice and Procedures – application to dismiss – Order 12 rule 40(1) – return of ex parte interim injunctions – continuation or discharge – consideration for discharge – concise pleading of jurisdiction of the court – costs discretionary

Cases Cited

Mainland Holdings Ltd & ors v Stobbs & ors (2003) N2522
Mark Ekepa & ors v William Gaupe & ors (2004) N2694
Pokia v. Yallon [2014] SC1336
Kerry Lerro t/a Hulu Hara Investments Ltd v. Philip Stagg & 2 ors (2006) N3050

Counsel

E Paisat, for the Plaintiff
P Tabuchi, for the Defendants

RULING

5 March 2021

1. SUELIP AJ: In the Notice of Motion filed 14 October 2020, the defendants seek three (3) orders. The first is for the ex parte orders of 5 October 2020 to be discharged or set aside. The second is for the entire proceeding to be dismissed for disclosing no cause of action, for being frivolous and vexatious, and for being an abuse of the process. The third is for costs of the proceedings on a solicitor-client or indemnity basis.

2. This application is contested by the plaintiff.

3. This is my ruling on that application.

Background

4. On 21 September 2020, the plaintiff filed an Originating Summons (“OS”) seeking declarations that the plaintiff is the legal proprietor of property known as Agriculture Lease, Volume 28, Folio 208, Pirak (Pirpirak) Plantation, Konoagil LLG, Namatanai, New Ireland Province (“the property”).

5. Also, on 21 September 2020, the plaintiff filed a Notice of Motion seeking an injunctive order pursuant to Order 14 rule 10 of the National Court Rules (NCR) against the defendants from entering onto and conducting their logging pond business on the property. The application was listed for hearing on 9 October 2020.

6. On 5 October 2020, the matter came before me as an urgent application seeking injunctive orders. I had raised a preliminary query then on why the proceeding is being filed in Kokopo when the cause of action arose in Namatanai, New Ireland Province. The plaintiff’s counsel responded and said this court is more accessible and the defendants are residents of this province. I advised counsel to utilize the Court in Kavieng in the future. I then heard and granted the injunctions sought by the plaintiff.

Issues

7. The issues are as follows:

(i) Whether the interim injunctions of 5 October 2020 should continue or be discharged?

(ii) Whether the entire proceedings should be dismissed for disclosing no cause of action, for being frivolous and vexatious, and for being an abuse of process of the Court?

(iii) Whether the plaintiff should pay for the defendants’ costs on a solicitor-client or indemnity basis?

Law

8. On the first issue, where there is an application to discharge or set aside interim injunctions, I am to be guided by the considerations as set out in Mainland Holdings Ltd & ors v Stobbs & ors (2003) N2522, and Mark Ekepa & ors v William Gaupe & ors (2004) N2694. These considerations are:

(i) has there been a change in the circumstances since the interim orders?
(ii) the relative conduct of the parties since the interim orders
(iii) were there previously undisclosed facts?
(iv) were the interim orders made erroneously?

(v) were the grounds relied on to set aside argued before the Court earlier?

(vi) was the court misled when it issued the interim injunctions?

9. In their application to dismiss the proceedings, the defendants rely on Order 12 Rule 40 (1) of the National Court Rules (NCR) which provides:

(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 and 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.

10. As to costs, it is a discretionary matter for the Court to decide on.

Defendants’ arguments

11. In summary, the defendants submit as follows:

(i) the OS is defective and therefore the jurisdiction of the Court has not been properly invoked. The plaintiffs Notice of Motion filed 21 September 2020 lacked proper legal foundation.

(ii) the plaintiff’s Notice of Motion filed 21 September 2020 was returnable on 9 October 2020 but was heard on 5 October 2020. The return date was never brought to the Court’s attention on 5 October 2020.

(iii) the plaintiff’s Notice of Motion did not contain a concise reference to the Court’s jurisdiction.

(iv) the defendants are not the trespassers. The first defendant is not properly named, and the second defendant does not operate the log pond on the plaintiff’s property.

12. For these reasons, the defendants submit that the interim injunctions should be discharged forthwith with costs on a solicitor-client or indemnity basis.

13. The defendants also submit that for the same reasons, the entire proceedings should also be dismissed.

Plaintiff’s arguments

14. The plaintiff argued that the OS is compliant with Form 7 of the NCR and there is no rule at law that requires concise pleadings of particular provisions. Counsel submitted that the OS pleads the substantive cause of action and any interim reliefs sought come by way of a Notice of Motion.

15. The plaintiff further submitted that a Conditional Notice of Intention to Defend was filed by the first defendant and a Notice of Intention to Defend was filed by the second defendant By filing these notices, the plaintiff says both defendants are liable for trespassing. In any event, the plaintiff says the Conditional Notice of Intention to Defend is null and void pursuant to Order 7 rule 7(2) of the NCR because the second defendant failed to file a notice of motion to set aside the writ.

16. The plaintiff also submitted that he relied on Order 14 rule 10 of the NCR to seek interim injunctions on 5 October 2020. When quizzed as to the specific subrule used, counsel said he used subrule (1) but he did not plead that subrule in his Notice of Motion.

17. No other submissions were made regarding the continuation of the interim injunctions except that the defendants are still trespassing on the plaintiff’s land. However, no new evidence was presented to show that the defendants still trespass on his property. There were also no submissions made in response to the defendants’ application for dismissal except that the OS is competent.

Considerations

18. Before I discuss further, I will address the issue raised by the defendant as to the OS and the Notice of Motion filed on 21 September 2020 by the plaintiff as being defective and not in the prescribed form. The plaintiff says that the OS is in Form 7, as prescribed. The plaintiff’s OS is in fact in Form 6, not Form 7. I also note that the last part of Form 6 beginning “Note” is missing. The question is whether the missing sentence is fatal to the competency of the form.

19. The plaintiff’s OS does forewarn the defendants of the consequences of their non-attendance. It also provides the plaintiff’s lawyers particulars. I note the OS was drafted by a lawyer with years of practicing experience and it is no excuse not to file court documents in their prescribed form. Nevertheless, the incomplete OS does not make it incompetent, in my view, and so I accept generally that is in the prescribed form. Any plaintiff and his/her lawyer ought to be more cautious in drafting any court document to avoid any competency issues.

20. Further, the plaintiff’s Notice of Motion relies on Order 14 rule 10 as its jurisdictional basis when it sought the interim injunctions on 5 October 2020. This provision is reproduced hereunder:

10. Preservation of property. (28/2)

(1) In proceedings concerning any property, or in proceedings in which any question may arise as to any property, the Court may make orders for the detention, custody or preservation of the property.

(2) An order under Sub-rule (1) may authorize any person to enter any land or to do any other thing for the purpose of giving effect to the order.

(3) In proceedings concerning the right of any party to a fund, the Court may order that the fund be paid into Court or otherwise secured.
21. Order 14 rule 10 has 3 subrules. Which one of these subrules was relevant to the plaintiff’s application? Only subrule 1 is applicable but not subrules 2 and 3. In Pokia v. Yallon [2014] SC1336, the Court found the Notice of Motion heard by the trial judge failed to meet the requirements of Order 4 rule 49(8) of the NCR. However, the Court did not find the Notice of Motion to be incompetent as Order 4 rule 49(8) vests a judge a discretion to hear the motion that is not compliant with this rule. Therefore, I proceeded to hear the plaintiff’s application on the basis that although the specific jurisdictional basis of the Notice of Motion failed to meet the requirements of Order 4 rule 49(8), I have the discretion to deal with it then.

22. Now, onto the first issue of whether the interim injunctions of 5 October 2002 should continue or be discharged. The plaintiff did not argue afresh his submission on the application for interim injunctions nor did he argue for the injunctions to continue except that the defendants are still on his client’s land. There is no new evidence to show the defendants ongoing trespass on the plaintiff’s land.

23. On the other hand, the defendants made submissions the plaintiff had sought early interim injunctions in a Notice of Motion which was to be heard on 9 October 2020 and in doing so, the plaintiff failed to bring this matter to the attention of the Court on the day the interim injunctions were granted. Thus, the plaintiff’s conduct is mischievous. Additionally, it is submitted that they were not given an opportunity to raise the grounds for setting aside the interim injunctions earlier.

24. I now discuss each consideration in an application for discharge of interim injunctions.

(i) has there been a change in the circumstances since the interim orders?

The plaintiff says there has no change since the interim orders were granted on 5 October 2020 and the alleged trespassers are still on his land but provide no new evidence to prove the ongoing trespass.

(ii) the relative conduct of the parties since the interim orders.

The conduct of each party is still the same.

(iii) were there previously undisclosed facts?

The second defendant denies setting up the log pond. It also denies that the first defendant is an employee of the second defendant.

(iv) were the interim orders made erroneously?

The plaintiff failed to plead the relevant subrule to Order 14 rule 10 of the NCR. However, the Court has a discretion to deal with it.

(v) were the grounds relied on to set aside argued before the Court earlier?

No, the grounds relied on to set aside the injunctions were not argued before as the application was heard ex parte.

(vi) was the court misled when it issued the interim injunctions?

I do not consider that this Court was deliberately misled when it granted the injunctions. However, it may have been misled about the correct identification of the defendants. This is the factor weighing strongly towards setting aside the injunction.

25. Whilst there has been no change in the circumstances and the conduct of the parties since the interim orders, the grounds relied on to discharge the injunctions have only come to light. The defendants are not the correct parties and they deny operating the log pond. The interim orders may have been granted on an erroneous legal basis but the Court has the discretion to deal with it. Nonetheless, the interim orders cannot continue until the correct defendants are named.

26. On the defendant’s application for dismissal, the main ground for dismissal of proceedings is that the OS is not in the prescribed form. Further, the defendants submitted that the first defendant is not properly named, and he is not an employee of the second defendant. The defendants also say that the second defendant is not the company operating a log pond on the plaintiff’s land and the plaintiff cannot prove otherwise.

27. The defendants have filed their Conditional Notice of Intention to Defend and Notice of Intention to Defend, respectively. However, the first defendant has not applied to set aside the service of the OS within the required period in Order 7 rule 7(2) and therefore he is subject to judgement (Order 7 rule 7(5)).

28. To dismiss a proceeding is a discretionary matter and before I can order a dismissal, I will consider the reliefs sought by the plaintiff in his OS. Essentially, the plaintiff is seeking declarations that he is the legal proprietor of the property and that the defendants are trespassing on his property, respectively. He also seeks an order that the defendants pay damages for trespassing with interests and costs.

29. In Kerry Lerro t/a Hulu Hara Investments Ltd v. Philip Stagg & 2 ors (2006) N3050, His Honor Justice Kandakasi (as he then was) held inter alia, and I quote:

“Our judicial system should never permit a plaintiff or a defendant to be ‘driven from the judgment seat’ in a summary way, ‘without a Court having considered his right to be heard.’ A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.

At the same time however, the law such as the Rules under consideration provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.”...

30. The reliefs sought in the OS by the plaintiff are genuine claims by an aggrieved person of his rights over his property. He has a reasonable cause of action. His claim is neither frivolous, vexatious nor an abuse of process and the Court should not be in a hurry to drive him from the judgement seat.

31. On the issue of costs, the defendants have asked for a solicitor/client or indemnity costs if this proceeding is dismissed. Their forewarning is in their letter of 14 October 2020. However, it remains a discretionary matter for the Court. The plaintiff is an ordinary citizen who is only trying to protect his proprietary interests.

Conclusion

32. In conclusion, the Orders of the Court are:

(i) The ex parte interim injunctions of 5 October 2020 are discharged.

(ii) The application to dismiss the entire proceeding is refused.

(iii) The plaintiff shall file an Amended Originating Summons with the correct defendants within 14 days from today.

(iv) Costs for the defendants on a party/party basis to be taxed if not agreed.
________________________________________________________________
Paisat Lawyers: Lawyers for the Plaintiff
Young & Williams Lawyers: Lawyers for the Defendants