N10009
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 974 OF 2017

BETWEEN
ANDREW EPERE, LOTTY KOYORO, ISSAC KELLY AND DAVID KAIYA on their behalf and others of Morata 11 & 111 whose names listed under schedule “A” of this Writ
First Plaintiffs/First Cross-Defendants

AND
LUKE KAREPA, PATRICIA ANGOPA AND NICKSON UNDA on their behalf and others of Morata 11 & 111 whose names listed under schedule “B” of this Writ
Second Plaintiffs/Second Cross-Defendants

AND
RAJIV AWEI, VINCENT KONDO AND CLEMENT NEKA on their behalf and others of Morata 11 & 111 whose names listed under schedule “C” of this Writ
Third Plaintiffs/Third Cross-Defendants

AND
WESSY KOMBEKE, VINCENT TEPI AND ANTHONY LUKE on their behalf and others of Morata 11 & 111 whose names listed under schedule “D” of this Writ
Fourth Plaintiffs/Fourth Cross-Defendants

AND
NETT HOLDINGS LIMITED
Defendant-Cross-Claimant

Waigani: Makail, J
2022: 19th October & 11th November

PRACTICE & PROCEDURE – Cross-claim – Dismissal of proceeding – Abandonment of cross-claim – Prosecution of cross-claim – Discretionary – Notice of intention to prosecute cross-claim – No alternative legal avenues to ventilate issues raised in cross-claim – National Court Rules – Order 8, rule 47

Cases Cited:
Urumpa Kemesi Chairman of Yesiki ILG 447 v. Sedion Walambo for and on behalf of Melipu Yesiki ILG & 2 Ors (2006) N3069

Counsel:
Mr. W. Baundo, for Plaintiffs/Cross-Defendants
Ms. B. Kumo, for Defendant/Cross-Claimant

RULING
11th November, 2022
1.	MAKAIL, J: On 22nd September 2017 the plaintiffs commenced this proceeding against the defendant and State parties and asserted an entitlement to occupy a series of portions of land located at Morata 2 and 3 in the National Capital District.  

2.	They alleged the title of each portion of land was obtained by fraud. 

3.	On 24th October 2017 the defendant filed a statement of defence and cross-claim.  It denied the allegation of fraud and cross-claimed that as registered proprietor, it had clear title and did not invite the plaintiffs onto the portions of land.  

4.	It sought, amongst others, an order to have the plaintiffs vacate the portions of land.

5.	On 8th July 2022 the matter was called up for trial.  There were pending motions including the cross-claim.

6.	Mr Baudo learned counsel for the plaintiffs applied to have the matter adjourned on the basis that discovery process had not been completed.  

7.	The Court refused the application and directed that the trial commenced forthwith.  Learned counsel further advised the Court that the plaintiffs were not ready for the trial and sought leave to withdraw the proceeding.

8.	Ms. Kumo learned counsel for the defendant objected to the plaintiffs’ application for withdrawal of proceeding and sought an order for dismissal of the proceeding for want of prosecution.

9.	The Court refused the plaintiffs’ application and dismissed the proceeding for want of prosecution.  

10.	At no point did learned counsel for the defendant inform the plaintiffs and the Court that there was a cross-claim and that the defendant seeks to prosecute it at that point or on a later date.

11.	On 1st August 2022 the defendant filed a notice of motion seeking an order for summary judgment against the plaintiffs based on the cross-claim.  The defendant asserted that the motion is based on the plaintiffs’ admission in their affidavits that they occupied and put-up structures on the portions of land.

12.	On 19th October 2022 the defendant’s notice of motion was taken up for hearing and the plaintiffs objected to its competency on the basis that the cross-claim was abandoned after the dismissal of the proceeding and to further progress it constituted an abuse of process.

13.	Learned counsel for the plaintiffs contended that while it is a discretionary matter for the defendant to prosecute the cross-claim it was necessary for it to put the plaintiffs and the Court on notice of its intention to do so.  

14.	Learned counsel further relied on the National Court decision by Davani J in Urumpa Kemesi Chairman of Yesiki ILG 447 v. Sedion Walambo for and on behalf of Melipu Yesiki ILG & 2 Ors (2006) N3069 to support his contention that appropriate notice is necessary to maintain and prosecute the cross-claim.

15.	Inferentially when the defendant did not notify the plaintiffs of its intention to prosecute the cross-claim, it was open to them to accept that the defendant had abandoned it.

16.	A further ground advanced by learned counsel was that, the dismissal did not operate as a bar to the defendant from commencing fresh proceeding against the plaintiffs if the alleged trespass to land was continuing, such proceeding may be taken up in the District Court by way of a summary ejectment proceeding.

17.	Ms Kumo learned counsel for the defendant opposed the objection and contended that the dismissal of the proceeding did not operate as a bar to the cross-claim.  

18.	For this reason, it was open to the defendant to maintain and prosecute the cross-claim against the plaintiffs.

19.	The Court notes that the pertinent provision in the National Court Rules which regulates a cross-claim is Order 8, rule 47.  Rule 47 states:

“A cross-claim may proceed notwithstanding that judgement is entered on the writ of summons or any other cross-claim in the proceedings or that the proceedings on the writ of summons or any other cross-claim are stayed, dismissed or discontinued.”

20.	The Court upholds the contention by learned counsel for the plaintiffs that notwithstanding the dismissal of the proceeding, the prosecution of a cross-claim is a matter of discretion.  

21.	As the National Court in Urumpa Kemesi Chairman of Yesiki ILG 447 (supra) observed at [27] of its ruling:

“…although O.8 r. 47 states that a cross-claim may proceed, notwithstanding the discontinuation, that it is a matter of discretion.” (Emphasis added).

22.	The discretion conferred on the Court to decide whether a cross-claim can be prosecuted after a proceeding has been dismissed recognises the overriding principle of finality to litigation. 

23.	First, the discretion may be exercised in favour of the cross-claimant to prosecute the cross-claim where the cross-claimant has given notice of its intention to prosecute it.  A notice may be given prior to the trial or date of the dismissal of the proceeding.  

24.	Following that, the cross-claim may be tried together with the original claim in the proceeding at trial, or on a later date.  Secondly, where there are no alternative legal avenues to ventilate the issue(s) raised in the cross-claim.

25.	In this case while Order 8, rule 47 permits a cross-claimant to proceed with a cross-claim notwithstanding that the proceeding has been dismissed, the defendant did not notify the plaintiffs and the Court of its intention to proceed with the cross-claim at the date of trial or on a later date.  

26.	As a result, the plaintiffs were not aware that they were to defend the cross-claim at the trial or on a later date.

27.	Secondly, the Court upholds learned counsel’s contention that the dismissal of the proceeding does not operate as a bar to the defendant from commencing fresh proceeding to ventilate the issue(s) raised in the cross-claim.  

28.	As to the issues, the Court notes that they are predominately related to the protection of the defendant’s interest based on the allegation of continuing trespass to land by the plaintiffs.  Which legal avenue to take up is a matter for it to decide.

29.	For the foregoing reasons, the Court upholds the objection.  The notice of motion filed 1st August 2022 is an abuse of process.  It is struck out forthwith, with costs to the plaintiffs, to be taxed, if not agreed.

Ruling and orders accordingly.
________________________________________________________________
Gibson Bon Lawyers: 	Lawyers for Plaintiffs/Cross-Defendants
Jema Lawyers: 		Lawyers for Defendant/Cross-Claimant