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Toggo v Kamun [2025] PGNC 11; N11134 (20 January 2025)

N11134

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 661 OF OF 2020

BETWEEN:
SOSTHEN TOGGO
Plaintiff

AND
EMMA PANYOHAN KAMUN
Defendant

LAE: DOWA J
13 OCTOBER 2023; 20 JANUARY 2025

PRACTICE AND PROCEDURE-application for joinder of parties under Order 5 Rule 8 of the National Court Rules-the applicant must demonstrate to the satisfaction of the Court that; 1) the person (sought to be added as a party) ought to have been joined a party in the first place and 2) the person whose joinder as a party is necessary to determine all matters in dispute- failing to meet the requirements, the application for joinder was refused

PRACTICE AND PROCEDURE- application for dismissal of proceedings for disclosing no reasonable cause of action and for frivolity and abuse of process - Order 10 Rule 9A (15) and Order 12 Rule 40 of the National Court Rules-claim statute barred under Sections 2 and 4 of the Frauds and Limitation Act-no action lie to enforce contract for sale or dispose of land or interests in land unless it is in writing and signed by the party against whom the action is taken- alleged contract to dispose 25% of land was not in writing and signed by the Defendant- clear case for summary dismissal-application granted-proceedings dismissed.

Cases cited
Active Auto Parts (PNG) Pty Ltd v Brian Hull (1990) N833
Leontine Ofoi v Kris Bongare (2007) N3248
Jacobs v Kwaindu [1991] PNGLR 366
Kunjil No 19 Limited v Benjamin Samson & others (2025) SC2677
Mt. Hagen Urban LLG vs. Sek No. 15 (2009) SC1007
National Provident Fund vs. Maladina & Others (2003) N2486
Peyape v Waiya (2021) SC2109
PNG Forest Products vs. State [1992] PNGLR 84
Pamela Ipi Pangu v Ian Ellery (2007) N3227
Ronny Wabia vs. BP Exploration Co. Ltd [1998] PNGLR 8
Sonny Atua v Grace Kemmah (2011) N4296
Wabia vs. BP Petroleum (2019) N4337
Wambunawa Holdings Ltd. vs. ANZ Bank (2020) N8310
Waril Incorporated Land Group v Morobe Provincial Government & others (2023) N10108

Counsel
S. Toggo, plaintiff in person
J. Langah, for the defendant

RULING

1. DOWA J: This is a ruling on two competing applications by the parties.
   
2. The Plaintiff applies for the joinder of parties under Order 5 Rule 8 of the National Court Rules, while the Defendant applies for the dismissal of the proceedings pursuant to Order 10 Rule 9A (15) (and Order 12 Rule 40) of the National Court Rules for disclosing no reasonable cause of action.
   
3. I will deal with the Defendant’s application first because, if the application is successful, it will end the proceedings and there shall be no need to consider the Plaintiff’s application for joinder.
   

Background Facts

4. The proceedings involve a dispute over a property described as Allotment 36 Section 3 Lae, Morobe Province. The Defendant is the registered proprietor of the property, under State Lease Volume 24 Folio 38.
   
5. The Plaintiff is the current occupant of the said property and has been in occupation of the property since March 2014.
   
6. The Plaintiff is a lawyer by profession and a former employee of the law firm, Daniels & Associates, a local law firm owned and operated by one Seth Daniel.
   
7. At all material times, especially late 2013, and about three years prior to being granted title, the Defendant was only a tenant of the property managed by the National Housing Commission. Due to outstanding rental arrears, the National Housing Commission issued notice of eviction should the Defendant fail to pay up her outstanding rental arrears of K25,000.
   
8. The Defendant then sought assistance from Seth Daniels of Daniels & Associates. Seth Daniels agreed to assist the Defendant on terms which was reduced into writing in the form of a Statutory Declaration in the following:
   
   • (1) The Defendant was an interested purchaser of the said property under the Government Home Ownership Scheme.
     
   • (2) The National Housing Corporation demanded settlement of the rental arears of K25, 000. 00.
     
   • (3) Seth Daniel was to assist with K5, 000. 00 and pursue the matter in Court.
     
   • (4) After the Defendant obtains the title to the said property, she will cause 50% ownership interest of the property to Seth Daniels.”
     
9. It was orally agreed further that:
   
   1. The Plaintiff will take charge of instituting proceedings against the National Housing Commission to stop the eviction proceedings.
   2. Legal assistance will be provided free of charge.
   100. The Plaintiff move into the property to provide security against National Housing Corporation
   4. The Plaintiff shall renovate the house at his own expense
   5. The Plaintiff shall pay a rent of K500.00 per fortnight to the Defendant.
   6. The Plaintiff shall remain on the property until the issuance of the title to the land.
      
10. Apart from the above terms, the Plaintiff alleges that he would be entitled to 25 % of the property once the title is granted, which claim is disputed by the Defendant.
    
11. The Defendant was granted the title to the property on 13^th September 2015 which was registered 22^nd April 2016. The Defendant requested the Plaintiff to pay outstanding rentals for the property and for the delivery of possession but was refused.
    
12. On the other hand, the Plaintiff alleges that he is entitled to 25% of the property as per the verbal agreement.
    
13. The Plaintiff instituted the current proceedings for specific performance of the contract as well as damages for the renovation costs done to the property.
    

Defence

14. The Defendant filed a Defence denying liability. In particular, the Defendant pleads that:
    
    1. Her initial agreement was with Seth Daniel and not the Plaintiff.
    2. She denies making an oral agreement with the Plaintiff to part with 25% ownership of her property to the Plaintiff.
    100. The Plaintiff was allowed to enter and occupy the property for two years pending issue of title.
    4. The Plaintiff was to pay rent on the property at K500.00 per fortnight.
    5. The Plaintiff was to do renovation work during occupation at his own cost.
    6. The Plaintiff was to deliver possession once title to the property was granted to the Defendant.
       

The Defendant’s Application

15. By Notice of Motion filed on 31^st August 2023, the Defendant seeks the following reliefs:
    
    1. Pursuant to Order 10 Rules 9A (15) (2) of the National Court Listing Rules 2005, the entire proceedings be dismissed for:
       
       • (a) Disclosing (pleading in the Statement of Claim) no reasonable cause of action,
       • (b) Proceeding is frivolous and vexatious,
       • (c) Pleading has tendency to cause prejudice,
       • (d) Want of prosecution and
       • (e) Failure to comply with Court Directions of 3^rd July 2023.
         
    2. Costs be paid by the Plaintiff.
       
    3. Any other orders this honorable court deems fit.”
       

16. The Motion is supported by the following affidavits:

(i) Affidavit of Kay Bade filed on 31^st August 2023 (Doc. No. 15),

• (ii) Affidavit In Support of Seth Daniels filed on 28^th August 2023 (Doc. No. 12),
• (iii) Affidavit of Emma Panyohan Kamun filed on 14^th July 2023 (Doc. No. 7),
• (iv) Affidavit of Emma Panyohan Kamun filed on 14^th July 2023 (Doc. No. 8) and
• (v) Affidavit of Seth Daniels filed on 12^th September 2023 (Doc. No. 21).
  

17. The application is opposed by the Plaintiff. The Plaintiff relies on the following affidavits:

a. Affidavit of Sosthen Toggo filed 7^th September 2023 (Doc. No. 17).

b. Affidavit of Sosthen Toggo filed 7^th September 2023 (Doc. No. 18).

c. Affidavit of Sosthen Toggo filed 14^th September 2023 (Doc. No. 25).

The submissions of Parties

18. The Defendant submits that the proceedings be dismissed on the following grounds:

a. disclosing no reasonable cause of action.

b. being frivolous and vexatious

c. being a proceeding to cause prejudice

d. for want of prosecution

e. for failure to comply with Court directions

19. The factual basis for the application is that:

a. the Defendant did not make any oral nor written agreement with the Plaintiff to part with 25% ownership of her property to the Plaintiff.

b. there being no written agreement to give away 25% of her property to the Plaintiff, such alleged oral agreement is statute barred and unenforceable by virtue of Sections 2 and 4 of the Frauds & Limitation Act.

c. Her initial agreement was with Seth Daniel and not the Plaintiff.

d. The Plaintiff was allowed to enter and occupy the property for two years pending issuance of title but has overstayed.

e. The Plaintiff was to pay rent on the property at K 500.00 per fortnight but has not paid the rent.

6. The Plaintiff was to do renovation work during occupation at his own cost.
   

20. The Plaintiff submits that an agreement was made between the Defendant, Seth Daniel, and himself that he would have 25% interest in the subject property in consideration of him defending the eviction proceedings brought by the National Housing Corporation. He succeeded in defending the Defendant and the Defendant eventually obtained title to the property two years later. Part of the agreement was for him to enter and occupy the premises. He entered the premises and did renovations, and the Defendant is yet to settle the costs. He submits that his claim against the Defendant and Seth Daniel is genuine, and leave be granted to have the later joined as a defendant. He submits that he be allowed to prosecute the claim and that the proceedings should not be summarily dismissed.

Issues

21. The issues for consideration are:

a. Whether the proceedings be summarily dismissed under Order 10 Rule 9A (15) (2) and Order 12 Rule 40 (1) of the National Court Rules for disclosing no reasonable cause of action and for frivolity.

b. Whether leave be granted to the Plaintiff to join Seth Daniel as second Defendant to the proceedings.

The Law

22. Order 8 Rule 27, Order 10 Rule 9A (15) (2) (Listing Rules 2005) and Order 12 Rule 40 (1) of the National Court Rules are relevant, and they are set out below:

a. Order 8 Rule 27

“27. Embarrassment, etc (15/26

(1) Where a pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

(c) is otherwise an abuse of the process of the Court,

the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.

(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1). ”

b. Order 10 Rule 9A (15) (2)

“15. SUMMARY DISPOSAL

(1) The Court may summarily determine a matter:

a. on application by a party; or

b. on its own initiative; or

c. upon referral by the Registrar under (3) below.

(2) The Court may summarily dispose of a matter in the followingsituations:

a. for want of prosecution since filing the proceedings or since the last activity on the file; or

) b. for a failure to appear at any of the listing or directions hearing by a party or his lawyer; or

c. for non-compliance of any order or directions previously made or issued by the Court at any of the listing processes.

d. under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules.

e. on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court. 27. Embarrassment, etc (15/26)

b. Order 12 Rule 40

“Frivolity, etc. (13/5)

(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 or 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.”

23. The case law on Order 8 Rule 27, Order 10 Rule 9A (15)(2) and Order 12 Rule 40 of the National Court Rules is well settled. Refer: 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; and Wambunawa Holdings Ltd. V ANZ Bank (2020) N8310.

24. The principles of law settled and emanate from the above cases are:
    1. A claim may be disclosing no reasonable cause of action if the facts pleaded do not clearly show all necessary facts and legal elements to establish a claim known to law.
       
    2. A claim may be frivolous if it can be shown that it is obviously untenable that it cannot possibly succeed or is bound to fail if it proceeds to trial.
       
    100. 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.
         
    4. The Court has an inherent jurisdiction to protect and safeguard its processes from abuse.
       
    5. 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 if it proceeds to trial.
       

25 In the case Waril Incorporated Land Group v Morobe Provincial Government & others (2023) N10108, I discussed the law on the applications under Order 12 Rule 40 of the NCRs in the following terms:

12. The law on applications under Order 12 Rule 40(1) of the National Court Rules is settled. In the case, PNG Forest Products v State (1992) PNG LR84-85 the Court adopting some English Court phrases stated that a court be slow and cautious in entertaining applications for dismissal of proceedings on the grounds of a party disclosing no reasonable cause of action. A Plaintiff should not be driven from the judgment seat unless the case is “unarguable” or the cause of action is “obviously and almost incontestably bad, or plainly untenable. In that case, the Court also said the Court has a discretionary power to dismiss if the proceedings are an abuse of the Court process.

......

12. In my view, the purpose of Order 12 Rule 40(1) of the National Court Rules is to provide for summary determination of the Plaintiff’s proceedings where it is plain and clear based on the pleadings that no triable cause of action is disclosed or where some common and proven facts show that the proceedings will not succeed if it proceeds to trial. Where common and proven facts show that the claim is untenable, no amount of evidence, or amendment to the pleadings will cure or improve the facts on which the claim is based. It is in the interest of all parties to terminate the proceedings early to avoid cost of a prolonged and winding litigation. The Court should not give the impression that the factual situation will change with the passing of time or that the Plaintiff’s chances of success will improve with more litigation. After all, the Court has a duty to protect itself from abuse of the Court process by entertaining unmeritorious claims which will only consume time and resources.”
    

Consideration of the Issues

26 The common facts from the pleadings and evidence of the parties are these. The Defendant is the registered owner of the property described as Allotment 36 Section 3, Lae Morobe Province (hereinafter “property”). The Title to the property was granted to her on 3^rd September 2015 and registered on 22^nd April 2016. Prior to September 2013, the Defendant was a tenant of National Housing Corporation (hereinafter “NHC”) and had expressed interest to purchase the property from NHC. In 2013, the Defendant was asked to pay her outstanding rent of K 25.000.00, failing which she would be evicted. The Defendant then sought Seth Daniels for legal and financial assistance.

27. In consideration of Seth Daniel agreeing to provide financial and legal assistance, the Defendant and Seth Daniels entered into an agreement in the form of Statutory Declaration on 16^th October 2013. The main terms of the agreement were that:
    

a. Seth Daniel was to assist with K5, 000. 00 and pursue the matter in Court.

b. After the Defendant obtains the title to the said property, the Defendant would cause 50% ownership interest of the property to Seth Daniels.

28. At that relevant time, the Plaintiff was an employed lawyer of Daniels & Associates Lawyers, a law firm owned and operated by Seth Daniels. The parties then entered into a further oral agreement that:
    

a. The Plaintiff, as employed lawyer, would take carriage of the matter in issuing legal proceedings against the NHC.

b. The Plaintiff would occupy the subject property and pay rent of K500.00 per fortnight.

c. The Plaintiff would renovate and improve the landscape at his own expense.

d. The Plaintiff would remain on the property until the title to the property is issued.

29. The Plaintiff’s claim that he would be entitled to 25 % interest in the property under an oral agreement is denied by the Defendant. The Defendant’s position is supported by the evidence of Seth Daniel. Mr. Daniel deposes that no agreement was made for the Defendant to offload 25% of the property to the Plaintiff. The only agreement was for the Defendant to offload 50% of the property to Mr. Daniel.
    
30. I remind myself that this is not the time to assess the credibility of the evidence. However, what is clear though from the pleadings and evidence is that the purported agreement relied on by the Plaintiff is oral and not in writing.
    
31. The Defendant submits that the alleged oral agreement to dispose of interest in land is not enforceable pursuant to Sections 2 and 4 of the Frauds and Limitation Act. Sections 2 and 4 of the Act are relevant and they read:
    
    2. CREATION, ETC., OF INTEREST IN LAND.

(1) Subject to Subsection (2) and Section 5–

(a) no interest in land can be created or disposed of except–

(i) by writing signed–

(A) by the person creating or disposing of the interest; or

(B) by that person’s agent lawfully authorized in writing for the purpose; or

(ii) by operation of law; or

(iii) by will; and

(b) a declaration of trust respecting any land or interest in land must be manifested and proved–

(i) by some writing signed by a person lawfully able to declare such trust; or

(ii) by that person’s will; and

(c) a disposition of an equitable interest or trust subsisting at the time of the disposition must be–

(i) in writing signed–

(A) by the person disposing of the equitable interest or the trust; or

(B) by that person’s agent lawfully authorized in writing for the purpose; or

(ii) by will.

.......

4.CONTRACTS FOR THE SALE OF LAND, ETC.

No action shall be brought upon a contract for the sale or other disposition of land or an interest in land unless the contract, or some note or memorandum of the contract, upon which the action is brought is in writing signed–

(a) by the person against whom the action is brought; or

(b) by an agent of that person lawfully authorized in writing for the purpose.

32. It is trite law that no action shall be taken for the enforcement of a contract for the sale or disposition of land or interest in the land unless the contract is in writing and signed by the person against whom the action is brought. Refer Cases: Leontine Ofoi v Kris Bongare (2007) N3248. Active Auto Parts (PNG) Pty Ltd v Brian Hull (1990) N833, Jacobs v Kwaindu [1991] PNGLR 366, Pamela Ipi Pangu v Ian Ellery (2007) N3227, Sonny Atua v Grace Kemmah (2011) N4296, Peyape v Waiya(2021) SC 2109 and Kunjil No 19 Limited v Benjamin Samson & others (2025) SC 2677,
    
33. Turning to the present case, the alleged contract for the disposition of 25% interest in the subject land to the Plaintiff is not in writing signed by the Defendant. The Defendant has denied entering a contract with the Plaintiff to dispose 25% of her property, be it oral or in writing. The Plaintiff has by his own pleading and evidence admitted that the alleged contract is made orally and not in writing.
    
34. The only agreement signed by the Defendant was made with Seth Daniel in the form of a statutory declaration. Although it is pleaded that the Defendant agreed to dispose 50% interest in her property to the Plaintiff and Seth Daniel, such an important contract was not reduced into writing. Dealings in land and proprietary interests are important matters. That is why the Land Registration Act exists to record, register and protect all such dealings and transactions involving land and property interests between parties in the country.
    
35. In the face of denial by the Defendant, supported by Seth Daniel, the former employer of the Plaintiff, and on the pleadings and evidence of the Plaintiff himself, I find the purported oral contract relied on by the Plaintiff to dispose of 25% of the Defendant’s property to him is not documented in writing to have legal effect. Consequently, the alleged oral agreement to transfer 25% interest in the Defendant’s property, Allotment 36 Section 3, Lae, is unenforceable as it is statute barred pursuant to Sections 2 and 4 of the Frauds and Limitation Act.
    
36. In my view, it is highly unlikely that the Plaintiff will succeed if the matter proceeds to trial. The facts are clear, and the substantive matter is frivolous and is bound to fail. Therefore, I am inclined to uphold the Defendant’s application for summary dismissal of the proceedings.
    

Other Reasons for dismissal

37. There are other additional reasons why the proceedings are unlikely to succeed. The Plaintiff was allowed to enter and occupy the Defendant’s property on the following terms:
    
    1. He remains on the property until the title to the property is issued to the Defendant.
    2. He pays rent at the rate of K500.00 per fortnight.
    100. He renovates the property at his own cost
         
38. The title to the property was issued to the Defendant on 3^rd September 2015. Meanwhile, the Plaintiff did not keep up with the rental payments. The Defendant requested the Plaintiff to deliver up possession to the Defendant but was refused. The defendant issued eviction proceedings in the District Court in proceedings in DC 701 of 2016. A decision was not reached because the proceedings were circumvented by the commencement of proceedings in the National Court initiated by the Plaintiff in proceedings WS No 195 of 2017. The National Court proceedings in WS No 195 of 2017 were eventually withdrawn on 20^th August 2020 with cost to the Defendant after it was listed for summary dismissal for want of prosecution. It is open to argument that the current proceedings are an abuse of the process, although this will not be the reason for dismissal of the proceedings.
    
39. Next, there was an agreement for the Plaintiff to pay rent while he occupies the property. There is no evidence of the Plaintiff paying any rent to the Defendant since occupation for the last 10 years. The Plaintiff has not kept his promise to pay the rent. The Plaintiff has not come to Court with clean hands.
    
40. Further, the Plaintiff was required to deliver possession as soon as the Defendant obtained the title. The Defendant was granted title to the property on 13^th September 2015 and got the title registered on 22^nd April 2016. The Plaintiff failed to give up possession of the property despite requests. The Plaintiff prolonged his stay on the property by virtue of the restraining orders issued in the two National Court proceedings. Again, it appears the Plaintiff breached the terms of the agreement and deprived the Defendant of possession of her property.
    
41. Finally, part of the Plaintiff’s claim is for the cost of renovation. The pleadings in paragraph 5 (7) of the statement of claim states that “The Plaintiff would move into the property and renovate the same at his own cost.” This is consistent with the Defendant’s evidence that the cost of renovation would be the Plaintiff’s responsibility during the tenancy period. The Plaintiff is therefore unlikely to succeed in any claim for costs for renovation and upkeep of the property.
    
42. For the foregoing reasons, I propose to uphold the Defendant’s application and dismiss the proceedings.
    

The Plaintiff’s application

b. Whether leave be granted to the Plaintiff to join Seth Daniel as second Defendant to the proceedings.

43. The next issue is whether leave be granted to the Plaintiff to join Seth Daniel as second Defendant in the proceedings. Will the Plaintiff’s application for joinder make a difference to the proposed dismissal decision.
    
44. The application for joinder is made pursuant to Order 5 Rule 8 of the National Court Rules. It reads:
    

“8. Addition of parties (8/8)

(1) Where a person who is not a party—

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,

the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.

(2) A person shall not be added as plaintiff without his consent.”

45. The Plaintiff relies on his affidavit filed 7^th September 2023. He deposes that he decided to join Seth Daniel as second Defendant because of an assurance Mr. Daniel made in 2013 to give him 50% interest of his interest (Mr. Seth’s interest) in the Defendant’s property. That is, the Plaintiff will be given 25% interest in the Defendant’s property. The Plaintiff deposes that he decided to join Mr. Daniel as defendant because of the position taken by the later in filing an affidavit in favour of the Defendant in the proceedings.
    
46. As found above, the Defendant denies an arrangement for the disposal of any interest in the property to the Plaintiff. The allegations of the Plaintiff are also denied by Seth Daniel, the former employer of the Plaintiff.
    
47. Order 5 Rule 8 of the National Court Rules gives a discretion to the Court whether to add a party to the proceedings. The elements to be satisfied are:
    

1) the person (sought to be added a party) ought to have been joined a party in the first place.

2) the person whose joinder as a party is necessary to determine all matters in dispute.

48. I have considered the pleadings, the evidence and submissions of the parties carefully. I have determined that the joinder application be refused for the following reasons:
    
    1. The agreement to dispose of 25% interest in the Defendant’s land to the Plaintiff is not in writing to be enforced pursuant to Sections 2 and 4 of the Frauds and Limitation Act.
    2. The assurance by Seth Daniel was alleged to have been made in 2013 and it becomes statute barred by virtue of Section 16 of the Frauds and Limitation Act in so far as it seeks enforcement of a contract allegedly made more than 10 years ago. If the Plaintiff considered Seth Daniel to be a relevant party, he should have made him a party earlier, and not belatedly reacting to Mr. Daniel’s decision to file affidavits in favour of the Defendant.
    100. The Defendant is not privy to any contractual arrangement made between the Plaintiff and Seth Daniel; the latter were in an employment relationship at the material time.
    4. Finally, the joinder is not necessary to effectually and completely determine the matters of dispute. The current dispute is clearly between the Plaintiff and the Defendant. To join Seth Daniel in the proceedings is likely to cloud the issues and prolong the litigation.
    5. It is not in the interest of justice to delay the matter as this will further deprive the Defendant of her right to immediate possession of her property.
       
49. Again, for the reasons given, I refuse the Plaintiff’s application for joining Seth Daniel as a party to the proceedings.
    

Conclusion

50. In the end, I have reached a conclusion that the Plaintiff’s joinder application be refused for the reasons given and the Defendant’s application for summary dismissal be upheld. I will therefore dismiss the Plaintiff’s proceedings for disclosing no reasonable cause of action and for frivolity.
    

Costs

51. Cost is discretionary. The Defendant has successfully defended the proceedings and is entitled to the costs of the proceedings, which costs shall be taxed if not agreed.
    

Delivery up of Vacant Possession

52. The Plaintiff has been on the Defendant’s property for more than 10 years. The Defendant has been deprived of the possession and usage of the property. In my view two months will be a reasonable time to deliver up vacant possession.
    

Restraining Orders

53. I note there are restraining orders in place against the Defendant. These injunctive orders shall be dissolved for clarity.
    

Orders

54. The Court orders that:
    
    1. The Plaintiff’s application for joinder of party is refused.
    2. The Defendant’s application for summary dismissal is granted.
    3. The Plaintiff’s proceeding is dismissed.
    4. All existing injunctive orders against the Defendant are dissolved.
    5. The Plaintiff shall have two months to deliver vacant possession of the Defendant’s property, Allotment 36, Section 3, 11^th Street, Lae, State Lease Volume 24, Folio 38.
    6. The Plaintiff shall pay the cost of the proceedings to be taxed, if not agreed.
    7. Time be abridged.

_______________________________________________________________
Lawyers for the defendant: Albright Lawyers