N10825
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 113 OF 2022 [IECMS] &
OS NO.79 OF 2023 (CONSOLIDATED)

BETWEEN:
KASPAR LAPANDA
Plaintiff

AND
ALA ANE IN HIS CAPACITY AS ACTING REGISTRAR OF TITLES-DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Defendant

AND
BENJAMIN SAMSON IN HIS CAPACITY AS SECRETARY-DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND
STEVEN ANDREW
Fourth Defendant

Waigani: Dowa J
2024:  10th & 17th May
PRACTICE AND PROCEDURE –judicial review– notice of motion application to dismiss proceedings – want of prosecution – and for frivolous and vexatious-National Court Rules – Order 16, Rules 13 (2) -Court’s discretion – relevant considerations – having failed meet the requirements for dismiss-application dismissed.
Cases Cited:

Seravo v Bahafo (2001) N2078 
John Naile v Sepik Coffee Producers Ltd (2004) N2637
PNG Forest Products v State (1992) PNGLR 84–85
Ronny Wabia v BP Exploration Co. Ltd (1998) PNGLR 8
Wabia v BP Petroleum (2019)) N4337
Mt. Hagen Urban LLG v Sek No. 15 (2009) SC1007
National Provident Fund v Maladina & Others (2003) N2486
Wambunawa Holdings Ltd. v ANZ Bank (2020) N8310

Counsel:

C Kup-ogut, for the Plaintiff
Solomon Tongela, for the Fourth Defendants
No appearance for First, Second and Third Defendants

RULING

17th May 2024

1	DOWA J: The Fourth Defendant applies for the dismissal of the proceedings pursuant to two motions filed 13th October 2023 and 22 April 2024. The Motions are in identical terms except for the earlier motion which contains extra ground for dismissal based on want of prosecution.

2.	    The Motions are supported by the following affidavits:

(1)	Affidavit of Solomon Tongela filed 09 October 2023 
(2)	Affidavit of Steven Andrew filed 30 May 2023
(3)	Affidavit of Lita Lamunane filed 25 September 2023.

3. The Plaintiff opposes the application. He relies on his own affidavit-Affidavit of Kasper Lapanda filed 27 October 2022 [CD No. 6].

Brief Facts

4. The proceedings involve a dispute over ownership of property described as Allotment 06 Section 425 Hohola, NCD. The title of the property was initially registered under the name of one Poro Lamunane.  Poro Lamunane died intestate on 16 December 2015. The Plaintiff alleges late Poro Lamunane sold the property to him which is denied by the fourth Defendants. There is a substantial dispute between the parties as the following facts demonstrate.

5.     On 13 May 2015, a Contract for Sale of the property was allegedly signed between the deceased and the Plaintiff, although this is disputed by the fourth Defendant. A Transfer Instrument was executed as well, which the fourth Defendant alleges was fraudulently signed by the Plaintiff rather than the deceased. On 14 August 2016, the then Registrar of Titles made an entry in the journal that the original copy of the title was lost. On 21 September 2016, the Plaintiff attended the Lands Office and paid K500 for replacement of the title. On Sunday, 02 October 2016, the Application for Notice for Issuance of Official Copy of the title was published in the Sunday Chronicles. On 3 October 2016, the title to the property was transferred and registered under the Plaintiff’s name. On 19 October 2016, the notice for issuance of the official copy of the title was published in the National Gazette, under the name of the deceased. 

6.     The Fourth Defendant alleges that the transfer of the title was orchestrated by the Plaintiff fraudulently. The children of late Poro Lamunane lodged a complaint with the Police and got the Plaintiff arrested and charged with namely, conspiracy to defraud, forging, and uttering false documents.

7.  The deceased, Poro Lamunane had three children namely: Benjamin Lamunane, Lita Lamunane and Nick Lamunane. Sometime in May 2016, the children went and registered their interest in the form of a complaint with the Office of the Public Curator. On 04 February 2021, the Letters of Administration were granted by the Court to the Public Curator. On 08 March 2022, the Public Curator wrote to the First Defendant herein on behalf of the children as beneficiaries to facilitate a title replacement given the original title was misplaced or destroyed. On 21 October 2022, a Transmission Application was entered onto the journal and the title was registered under the names of the children as join owners of the subject property pursuant to the Letters of Administration. On 20 January 2023, the children being the joint owners sold the subject property to the Fourth Defendant under a Contract of Sale.

8.    The Plaintiff alleges that he was the legitimate registered proprietor of the subject property until his title was irregularly cancelled by the first Defendant without complying with Sections 160 and 161 of the Land Registration Act. He was not given notice of the intended cancellation. He alleges the first Defendant did not file a Summons in the National Court to summon the Plaintiff to deliver the Title for cancellation as required by Section 160 of the Land Registration Act.

9.     The Plaintiff filed proceedings on 27th October 2022. After the filing of these proceedings, the children of the late Poro Lamunane with the assistance of the Public Trustee of PNG sold the property to the fourth Defendant, Steven Andrew.

OS No. 79 of 2023

10.   The fourth Defendant has commenced proceedings of his own seeking declaratory orders of ownership and for possession against the Plaintiff in proceedings OS No. 79 of 2023. This became necessary as the property is currently occupied by or is in the possession of the Plaintiff. By an order issued on 2nd April 2024, the proceedings in OS No 79 of 2023 has been consolidated with the current proceedings, OS (JR) 113 of 2022. 

The fourth Defendant’s application
 
11.    The fourth Defendant applies for the dismissal of proceedings under Order !6 Rule 13 (2) (a) of the NCR for summary dismissal for the following reasons:
a.	Want of prosecution
b.	Being frivolous and vexatious
c.	Proceedings are incompetent

        Issues

12.     The issues for consideration are:

a.	Whether this proceeding be dismissed for want of prosecution.
b.	Whether the proceeding be dismissed for being frivolous and vexatious.
c.	Whether the proceedings be dismissed for incompetence.  

Consideration

a.	Whether this proceeding be dismissed for want of prosecution.

13.     The first issue is whether this proceeding be dismissed for want of prosecution. The relevant rules relied on in the application are Order 16 Rule 13 (2) (a) & (b) of the National Court Rules. These rules read:  

“(2) Summary disposal 
a.	Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under Order 16 of the National Court Rules or under these Rules or on any other competency grounds.
b.	The Court may summarily determine a matter:
(i) on application by a party; or
(ii) on the Court’s own initiative; or
(iii) upon referral by the Registrar…” 
14.     The principles governing dismissal for want of prosecution are well settled in this jurisdiction as summarised in the cases Seravo v Bahafo (2001) N2078, and John Naile v Sepik Coffee Producers Ltd (2004) N2637 and they are:

1)	The Plaintiffs default is intentional or is allowing for an inordinate and inexcusable delay in the prosecution of his claim.
2)	There is no reasonable explanation given by the Plaintiff for the delay.
3)	That the delay has caused injustice or prejudice to the Defendant.
4)	The conduct of the Parties and their lawyers
5)	Interest of justice

15.    The fourth Defendant did not provide sufficient evidence to establish the requirements for dismissal of proceedings for want of prosecution. On the contrary, there is a lot of activity on the file. The proceedings were filed in October 2022. Leave to apply for judicial review was granted on 5th May 2023.   The fourth Defendant was joined as a party to the proceedings on 8th June 2023. The matter was fixed for trial on 11th October 2023. The trial was vacated at the request of all the Defendants including the fourth Defendant. On 2nd April 2024, this proceeding was consolidated with the fourth Defendant’s proceedings in OS No 79 of 2023. The facts are clear. There is no delay in the prosecution of the proceedings. If there is a delay, it was caused or contributed by the fourth Defendant. I reject the application for dismissal of proceedings on the ground of want of prosecution.

b. Whether the proceeding be dismissed for being frivolous and vexatious.

16.    The second reason for dismissal is on the ground of frivolity. The fourth Defendant relies on the various affidavits filed in the proceedings to argue that the transfer of property from the late Poro Lamunane to the Plaintiff was orchestrated by fraud and that there is overwhelming evidence to prove the allegation and for that reason the proceedings be summarily dismissed. The Fourth Defendant refers to a number of decided cases in support his submissions.

17.    I note the evidence he relies on is disputed by the Plaintiff. For example, the Plaintiff deposes in his affidavit that the sale of the property, especially the execution of the contract for sale, was witnessed by late Poro Lamunane’s daughter, Lisa Poro. Lisa Poro, on the other hand, denies witnessing the execution of any contract for sale between his father and the Plaintiff. This and other facts are disputed and need to be properly tested in a substantive hearing.

18.    It is also important to note that these proceedings are for judicial review of administrative decisions. The Plaintiff alleges that the Registrar of Titles failed to comply with Sections 160 and 161 of the Land Registration Act. The Court which granted leave was satisfied that there was an arguable case. The matters raised by the fourth Defendant can be raised at the substantive hearing of the application for judicial review. It is premature to consider the evidence at this stage of the proceedings. I note that most of the cases relied on by counsel for the fourth Defendant involve decisions made after the hearing of the substantive review. 

19.    The law on applications for dismissal of proceedings for being frivolous and vexatious is well settled.  Refer:  PNG Forest Products vs. State (1992) PNGLR 84–85, Ronny Wabia vs. BP Exploration Co. Ltd (1998) PNGLR 8, Wabia vs. BP Petroleum (2019)) N4337, Mt. Hagen Urban LLG vs. Sek No. 15 (2009) SC1007, National Provident Fund vs. Maladina & Others (2003) N2486; and Wambunawa Holdings Ltd. vs. ANZ Bank (2020) N8310.

20.     The principles of law settled and emanate from the above cases are:

a.	A claim may be disclosing no reasonable cause of action if the facts pleaded does not clearly show all necessary facts and legal elements to establish a claim known to law.
b.	A claim maybe frivolous if it can be shown that it is obviously untenable that it cannot possibly succeed or is bound to fail it if proceeds to trial.
c.	Proceedings are vexatious where the case is a sham, amounting to harassment of the opposing party, or where the opposing party is put to unnecessary trouble and expense of defending the case. 
d.	The Court cannot readily dismiss a case for lack of disclosing a reasonable cause of action or for frivolity or abuse of process unless it is shown that the case is clearly untenable and that it is unlikely to succeed even it proceeds to trial.

21.    I am not satisfied that the Plaintiff’s proceeding is a clear case for summary dismissal. It is far too early to dispose of the proceeding without a proper assessment of evidence. For these reasons, I reject the application for dismissal for frivolity.

c. Whether the proceedings be dismissed for incompetence.

22.    The fourth defendant did not advance any specific submissions on this ground. The reasons or basis for the ground was not clearly spelt out and therefore I reject same.

Consolidation of proceedings

23.   There is another matter worth mentioning. The Court has on 2nd April 2024 consolidated this proceeding with the fourth Defendants proceeding in OS No 79 of 2023. It is not appropriate to consider an application for dismissal in the circumstances where there are multiple legal and factual issues raised in the two proceedings which require proper determination. It is not in the interest of justice to summarily drive the Plaintiff from the judgment seat.

24.    For the reasons given, I am not satisfied that the fourth Defendant has established a clear case for the dismissal of the proceedings summarily and will therefore refuse the application for dismissal.

Orders 

25.     The Court orders that:

a. The fourth defendant’s application for summary dismissal is dismissed.
b. The fourth Defendant shall pay the costs of the application.
c. The matter is adjourned to 17th June 2024 for listing.
d. Time be abridged.
________________________________________________________________
Kup & Co Lawyers: Lawyers for the Plaintiff
Jema Lawyers: Lawyers for the Fourth Defendant
Solicitor -General: Lawyers for the First, Second & Third Defendant