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Luio v Kilark [2021] PGNC 85; N8823 (19 May 2021)

N8823

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 85 OF 2017

BETWEEN:
NORIT LUIO
Appellant

AND:
KENNEDY THOMAS KILARK
Respondent

Waigani: Miviri J
2021: 10^th May

PRACTICE & PROCEDURE – Judicial Review & Appeals – Appeal – Stay application Appellant seeking Stay of Appeal filed – Pending determination WS 75 of 2021 – Second cause of action filed by appellant on same matter – Same Property –Appeal hearing 2 days away – Motion without merit – Abuse of process – dismissal – cost follow event.

Cases Cited:

Agiru v Electoral Commission [2002] PGSC 5; SC687
Independent State of Papua New Guinea v Wingti [2021] PGSC 19; SC2100
Lihir Mining Area Landowners Association Inc. v Laketan [2018] PGNC 537; N7666
Pokia v Yallon [2014] PGSC 3; SC1336
Pruaitch v Manek [2019] PGSC 123; SC1884
Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906

Counsel:

D. Aigilo, Lawyer, for Appellant

M. Koimo Lawyer, for Respondent

RULING

19^th May 2021.

1. MIVIRI, J: This is the ruling on the Appellant’s application for Stay of the appeal that he instituted on the 09^th August 2017. He seeks pursuant to section 155 (4) and 185 of the Constitution and Order 12 Rule 1 of the National Court Rules. And he prays it pending the outcome of the proceedings WS 75 of 2021 (IECMS) Norit Luio v Kennedy Thomas Kiiark & 4 ors which is as to the determination over the proprietorship over property described as Section 529, Allotment 59, Volume 89, Folio 176, Gerehu 3B;
   
2. His situation is not likened to Independent State of Papua New Guinea v Wingti [2021] PGSC 19; SC2100 (4 May 2021), an application was made by the respondents to discharge a stay order of a single Judge of the Supreme Court. The single Supreme Court Judge had authority in law to stay the National Court proceedings pending the appeal. The Full Supreme Court dismissed the respondent’s application. Here it is the appellant who is instigating to stay the appeal he has filed.
   
3. In so filing he relies on his own affidavit filed of the 17^th May 2021, wherein he deposes that the respondent held himself out as the proprietor of the subject property, and filed eviction proceeding in the Port Moresby District Court to evict him from that property. He was the sitting tenant at that time. And was following up with the National Housing Corporation to purchase the said property. The respondent filed for eviction relying on an owner’s copy of the title. It is clear that the property was of the National Housing Corporation confirmed by the Acting Registrar of Titles by a letter dated the 16^th November 2016 confirming this fact, annexure “C” to his affidavit relied. But then on the 12^th July 2017 ex parte orders were issued by the Port Moresby District Court in favour of the respondent against the appellant annexure “D” to his affidavit. And so, the appeal was filed against on the 07^th August 2017.
   
4. Today 18^th May 2021 when he makes the application for Stay of the appeal that he instituted it is now almost four years running outstanding. He has no material filed showing or explaining the delay in its prosecution, justifying why it is as it is delayed and lingering. And in the midst when that is the case, he has resorted to filing a Writ of summons on the same matter WS 75 of 2021 (IECMS) Norit Luio v Kennedy Thomas Kiiark & 4 ors. The issue to be resolved is as to the determination over the proprietorship over property described as Section 529, Allotment 59, Volume 89, Folio 176, Gerehu 3B.
   
5. In my view that is analogous to commencing two proceedings emanating from the same matter and therefore as observed by the Supreme Court in Pokia v Yallon [2014] PGSC 3; SC1336 (2 May 2014) would amount to an abuse of process. There, the Supreme Court further observed that the exception is where the action accrued on different dates and relates differently either to the parties or the causes of the action. It is sufficient to set out the views of the Supreme Court that:
   

“An abuse of process will exist if a plaintiff commences more than one proceeding concerning the same cause of action. Here the appellant had prior to commencing the proceedings that are the subject of appeal, commenced similar, related proceedings. But the causes of action – defamation, negligence, and unlawful deprivation of his children – accrued on different dates. The primary Judge erred in law in regarding the appellant as being guilty of duplicating proceedings. The proceedings were dismissed in error.”

A retrial was ordered back in the National Court.

6. That is not the case here, what is here is as observed by the National Court in Lihir Mining Area Landowners Association Inc. v Laketan [2018] PGNC 537; N7666 (17 December 2018):
   

“An abuse of process will exist if a plaintiff commences more than one proceeding concerning the same cause of action. Such an abuse can be committed when two proceedings are conducted simultaneously regarding the same cause of action (Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008) or when the plaintiff loses one proceeding then comes back to court for a "second bite at the cherry" to prosecute the same cause of action (Agiru v Electoral Commission [2002] PGSC 5; SC687 (24 June 2002).”

It dismissed the proceedings for being an abuse of process.

7. The appellant deposes that the issue has been dealt with administratively by Department of Lands & Physical Planning and the National Housing Corporation. I have purchased the property and am now the lawful registered proprietor of the property annexure “H” is copy of the Owners official copy of the title to it. “I have therefore filed the proceedings styled WS 75 of 2021 (IECMS) Norit Luio v Kennedy Thomas Kiiark & 4 ors on the 09^th February 2021 seeking declaratory orders of what has already been confirmed by the NHC and DLPP Registry of Titles, namely, declaratory orders that the Respondent’s Title is fraudulent and my title is the one, genuine owners’ official copy of the title over the property and I am lawfully registered proprietor of the property.” Annexure “I” is a copy of that Writ of Summons in WS 75 of 2021 (IECMS).
   
8. “And it is for this reason that I pray to this Honourable Court to Stay this appeal pending the outcome of the proceedings WS 75 of 2021 (IECMS) Norit Luio v Kennedy Thomas Kiiark & 4 ors which is presently before a competent Court sitting to determine the issue of proprietorship over the property. The issue of proprietorship and the genuineness of the Respondent’s Title impinge directly on the District Court’s ex parte eviction orders and consequently this appeal and should therefore be dealt with to determine whether or not this appeal is necessary. I do not want to have to suffer paying legal bills to progress this Appeal if I shouldn’t have to, hence I pray this Appeal be stayed pending the outcome of the WS 75 of 2021 proceedings.”
   
9. It is evident that to stay the appeal scheduled to be heard Friday 21^st May 2021 will delay and procrastinate it. It is a 2017 appeal and at the date of this judgement would be almost four years in the making. And the reasons for seeking Stay do not hold water as set out above. It deals with the same property the subject of the WS 75 of 2021 and the effect is that two proceedings address the same parties with the same issue or proprietorship of the subject land. That it would serve no utility to Stay the appeal and pursue the WS 75 of 2021. Because that would amount to abuse of process because multiplicity of proceedings over the same matter observed in the outset of this Judgement and which is not anew: Pruaitch v Manek [2019] PGSC 123; SC1884 (6 December 2019).
   
10. Therefore, it would not be an error to refuse the application for Stay but then to exercise the same judicial discretion set out by the authorities set out above to dismiss this proceeding. Accordingly, exercising that authority specifically prescribed under Order 18 Rule 12 (4) (a) (ii) of the National Court Rules the application for Stay emanating against that appeal is dismissed in its entirety. Further in the light of all set out above the appeal is without merit considering and is therefore dismissed in its entirety, it is an abuse as set out to maintain it on the record of the Court. Accordingly, it is dismissed in its entirety with costs.
    
11. The formal orders are:
    
    • (i) Application for Stay is dismissed.
    • (ii) Appeal is also dismissed forthwith pursuant to Order 18 Rule 12 (4) (a) (ii) NCR.
    • (iii) Costs will follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

Jaminan & Partner Lawyers: Lawyer for the Appellants

Kipes Law: Lawyer for the Respondents