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Waima v Eastern Highlands Provincial Government [2023] PGNC 42; N10142 (20 February 2023)

N10142

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 268 OF 2022

BETWEEN:
KAIMA WAIMA
Plaintiff

AND:
EASTERN HIGHLANDS PROVINCIAL GOVERNMENT
First Defendant

AND:
EDUCATION DIVISION, Eastern Highlands Province
Second Defendant

AND:
BANANA BLOCK ELEMENTARY SCHOOL BOARD
Third Defendant

Goroka: Mugugia, AJ
2022: 20^th December,
2023: 20^th February

PRACTICE AND PROCEDURE – Application for summary judgment – Order 12, Rule 38 of the National Court Rules – Elements under Rule 38(1)(a) and (b) established by the Plaintiff - Defendants filed defence to claim - No serious triable issues raised by the defence - Discretionary power to grant summary judgment – Exercise of discretion - Application for summary judgment granted.
Counsel:

Richard Yombon, for the Plaintiff
No appearance, for the Defendants

DECISION AS TO APPLICATION FOR SUMMARY JUDGMENT

20^th February, 2023

1. MUGUGIA, AJ: This is an application for summary judgment against the Defendants. By this application, the Plaintiff seeks an order for summary judgment to be entered against the Defendants for damages to be assessed under Order 12, Rule 38 of the National Court Rules. The Plaintiff also seeks costs in his application.
   
2. The Plaintiff relied on the following affidavits in support of his application for summary judgment:
   

1. Affidavit of Iceman Maso filed on 24^th June 2022;
2. Affidavit of Regina Maso filed on 16^th August 2022;
3. Affidavit of Regina Maso filed on 2^nd September 2022;
4. Affidavit of Kaima Waima filed on 7^th September 2022;
5. Affidavit of Kaima Waima filed on 7^th September 2022;
6. Affidavit of Regina Maso filed on 5^th December 2022; and
7. Affidavit of Regina Maso filed on 19^th December 2022.

3. The application was made ex parte. I was satisfied that the Defendants’ lawyers were aware of the hearing date so I heard the Plaintiff’s application in their absence.
   
4. I now determine the Plaintiff’s application for summary judgment.
   

BACKGROUND

Plaintiff’s Claim

5. The Plaintiff’s civil claim is one of trespass against the Defendants. The current proceedings was instituted on 16^th June 2022. The Plaintiff alleged in his Statement of Claim that he was granted a State Lease of a portion of land described as Section 86, Allotment 18, Goroka, Eastern Highlands Province on 16^th August 2006. The State Lease was issued to him on 16^th March 2010.
   
6. The allegation is that the Defendants operated the Banana Block Elementary School on the land. The Plaintiff demanded vacant possession of the land but nothing happened. He thereafter filed proceedings styled as OS No. 702 of 2017, Kaima Waima v. Pastor John Mala, Banana Block Elementary School Board, Banana Block Elementary School & Goroka Local Church. On 25^th March 2021, an order was made in this particular proceedings declaring the Plaintiff as the legal owner or registered proprietor of the State Lease. An order was made for the Defendants to vacate the property by 26^th April 2021.
   
7. The Plaintiff says that the Defendants did not cease operating the Banana Block Elementary School on the land, and the Defendants’ continuous occupation of the land despite the demand for vacant possession amounted to unlawful occupation or trespass. As a result of the Defendants’ trespass or unlawful occupation, the Plaintiff suffered loss of use of enjoyment of the land for the duration of the unlawful and illegal occupancy by the Defendants.
   
8. The Plaintiff filed the current proceedings on 16^th June 2022, claiming the following substantive relief in his Statement of Claim:
   

1. General damages
2. Special damages
3. Interest
4. Costs

9. Mr Yombon submitted at the hearing that his client is seeking damages for the unlawful occupation of the land.
   

Defendants’ Defence

10. A notice of intention to defend was filed on behalf of the Defendants by Horizon Lawyers on 8^th July 2022. A defence was filed on 21^st July 2022, denying the Plaintiff’s claim in its entirety. The defence raised by the First and Second Defendants is that the Third Defendant was established on a vacant State Land, and they do not know of any tender and transfer of the land to the Plaintiff by the State. As a State agent, the Third Defendant was at all material times entitled to ownership and possession of the subject land based on the land laws of the State and the principles of equity.
    

ISSUE

11. The issue that arises for me to consider and determine is whether a clear case has been established by the Plaintiff to warrant entry of summary judgment against the Defendants.
    

THE LAW ON SUMMARY JUDGMENT

12. Summary judgment is a discretionary power. The law on summary judgment is set out under Order 12, Rule 38 of the National Court Rules. Rule 38(1) reads:
    

“38. Summary judgement.

(1) Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff-

(a) there is evidence of the facts on which the claim or part is based; and

(b) there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed,

the Court may, by order, direct the entry of such judgement for the plaintiff on that claim or part, as the nature of the case requires.”

13. The two elements of Rule 38 are (1)(a) and (b). An applicant for summary judgment is required to satisfy these two elements.
    

CONSIDERATION

14. I am reminded by case authorities that the discretion of the Court should be exercised with care and only in clear cases, and summary judgment can only be granted if there are no serious triable issues of fact or law.
    
15. In the present case, I find that a clear case has been established by the Plaintiff to warrant entry of summary judgment against the Defendants. My reasons for making this finding are:
    

15.1. The Plaintiff filed two separate affidavits on 7^th September 2022 (Court documents No. 9 and No. 10). The State Lease granted to the Plaintiff is in evidence in Court document No. 10. I have considered both affidavits in detail. In my opinion, both these affidavits contain evidence of the facts on which the Plaintiff’s claim is based. The Plaintiff has satisfied the element under Order 12, Rule 38(1)(a) of the National Court Rules.

15.2. Mr Kaima says in his affidavit (Court document No. 9) that the Defendants’ defence does not disclose any triable issue or issues on facts or law. In light of his evidence of ownership and the Court’s declaration of his ownership of the said land, he does not think the Defendants’ defence has any chance. He does not think that the Defendants have a good defence to be tried before this Court on the issue of liability.

15.3. Despite being served with the application for summary judgment and the supporting affidavits, the Defendants did not file any responding affidavit to show that there are triable issues of fact and law which warrants a full trial, and there is no need for a summary judgment order to be made now. In my opinion, the Plaintiff’s evidence in Court document No. 9 satisfies the element under Order 12, Rule 38(1)(b) of the National Court Rules.

15.4. The Defendants’ defence filed on 21^st July 2022 contains only 3 paragraphs. Having considered the general defences raised, I am of the considered view that no serious triable issues are raised by the Defendants’ defence

16. Based on the reasons given above, and in the exercise of my discretion, I will grant the Plaintiff’s application for summary judgment. Costs is discretionary. There will be no order as to the costs of the application.
    

FORMAL COURT ORDERS:

17. I therefore make these orders:

1. Summary judgment pursuant to Order 12, Rule 38 of the National Court Rules is entered in favour of the Plaintiff, with damages to be assessed.

2. No order as to the costs.

3. Time is abridged to the date of entry of these orders.

Court Orders Accordingly
________________________________________________________________
Richard Yombon: Lawyer for the Plaintiff