N9410
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 274 OF 2020

BETWEEN:
P7 & C INVESTMENT LIMITED
First Plaintiff

AND:
LOUIS KIVOVON PALAKAI, THERESA MARIAVE PALAKAI, BERNARD WARMANANAI PALAKAI, PAUL PALAKAI & JULIE ILAMIA PALAKAI
Second Plaintiffs

AND:
BELL TRANSPORT LIMITED
First Defendant

AND:
KK CONNECTIONS LIMITED
Second Defendant

Kokopo: Suelip AJ
2021: 16th & 29th June

CIVIL – Practice and Procedure – application to dismiss – Order 12 rule 40(1)(a),(b) & (c) – dispute over rightful owners of two portions of land – another judicial review proceeding involving same parties heard and determined in favor of first defendant – plaintiffs ordered to surrender their titles failing which replacement titles were issued – plaintiffs application for leave to review decision in Supreme Court pending – court’s power discretionary – this proceeding is an abuse of process – proceeding dismissed with costs 

Cases Cited

James Bell v. Land Titles Commission & 4 ors OS (JR) No. 61 of 2020 
Louis Kivovon Palakai v. Hon. Ambeng Kandakasi & 5 ors SC Review No. 11 of 2021

Counsel

E Paisat, for the Plaintiffs
N Rainol, as town agents for the First Defendant

DECISION

29th June, 2021

1.	SUELIP AJ: This is my decision on the Notice of Motion filed by the first defendant on 12 May 2021 seeking an order to dismiss the entire proceeding pursuant to Order 12 rule 40(1)(a), (b) and (c) of the National Court Rules. The first defendant also seeks an order for costs of and incidental to their application. This application is supported by the affidavit of their lawyer, Dane Mel sworn 6 May 2021 and filed 12 May 2021.

2.	The application is contested.

3.	The plaintiffs filed the Originating Summons on 31 August 2020 seeking certain declarations and orders. Essentially, the declarations and orders seek to declare them as the registered and legal owners of two portions of land. These portions of land are described as Portion 770C, Milinch of Rabaul, East New Britain Province, Volume 38, Folio 109 (Popadu), and Portion 1786C, Fourmil Rabaul, East New Britain Province, Volume 38, Folio 110 (Bitakoiavutarai). 

4.	Coincidently, the first defendant filed OS (JR) No. 61 of 2020 (IECMS) James Bell v. Land Titles Commission & 4 ors on 24 September 2020 at Waigani National Court. The fifth defendant therein is the second plaintiff in this proceeding.  The proceeding was to review the decision of the first respondent. Leave for judicial review was granted and the substantive hearing took place thereafter. On 16 February 2021, the Court granted the review inter alia, orders that the second plaintiff to deliver up its official copy of the certificate of title to the registrar of titles and upon receipt, the registrar shall cancel the titles within 14 days from the date of the order.

5.	The appellants (plaintiffs herein) have since filed SC Review No. 11 of 2021 (IECMS) Louis Kivovon Palakai v. Hon. Ambeng Kandakasi DCJ & 5 ors
to review the decision of the National Court. The appellants are yet to seek leave for judicial review in the higher court. 

6.	The jurisdictional basis for the second defendant is Order 12 rule 40(1)(a), (b) and (c) of the National Court Rules. This provision provides the following: 

(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.

7.	The issue is 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?

8.	The first defendant’s arguments are essentially that the Orders of 16 February 2021 in OS (JR) No. 61 of 2020 (IECMS) have recognized the first defendant as the legal owner of the land, and so these proceedings should be dismissed as the issue of ownership has been determined and plaintiffs are no longer title owners.

9.	In contesting the application, the plaintiffs submit that there is a current Supreme Court appeal of the decision of 16 February 2021 in OS (JR) No. 61 of 2020 (IECMS) which takes issue on granting of the judicial review. The appeal is still at the leave stage, and it is uncertain whether leave to review the decision of the lower court has been heard or granted. They say for this reason, this proceeding should not be dismissed. 

10.	In considering the first defendant’s application to dismiss against the plaintiff’s argument that the proceedings should not be dismissed because they have filed an appeal in SC Review No. 11 of 2021, I take into account the rights of each party in seeking redress. If I grant the first defendant’s application, can the plaintiffs still have an avenue to seek redress? I say yes, because if the higher Court grants them leave to review the decision of OS (JR) No. 61 of 2020 (IECMS), they still have that opportunity to be heard at the higher court. 

11.	Another factor I took into consideration is that this proceeding was filed first in time on 31 August 2020 whilst OS (JR) No. 61 of 2020 (IECMS) was filed 24 September 2020. However, both proceedings are asking the Court for the same relief and so the issues are identical. There is therefore no utility in maintaining multiple proceedings with identical parties and issues. Hence, this is an abuse of the Court process. 

12.	Therefore, I find there are currently two (2) proceedings with the same parties and issues before the same Court. By allowing both proceedings to continue is an abuse of the Court process.

13.	The Orders of the Court are these: 

(i)	This proceeding is dismissed in its entirety.

(ii)	Costs of the proceedings to the first defendant on a party/party basis to be taxed if not agreed.

________________________________________________________________
Paisat Lawyers:	Lawyers for the Plaintiffs
NatPhil Lawyers:	City agents for Mel & Hennry, Lawyers for the First Defendant