Kiwiki Enterprise Ltd v Piunde Ltd [2018] PGDC 24; DC3057 (24 April 2018)

DC3057

PAPUA NEW GUINEA
[In the District Court of Justice]
[Sitting in it’s Civil Jurisdiction]

DC 60 - 61 of 2017

Between:

KIWIKI ENTERPRISE LIMITED
-Complainant-

And:

PIUNDE LIMITED
- First Defendant-

And:

HANDII MAHN INVESTMENT LIMITED
- First Defendant-

Kundiawa: B. Tanewan - Magistrate

2018: 6^th April & 24^th April

District Courts Act - section 22 – District Court’s civil jurisdiction

State Lease – Issue of eviction – Application to stay eviction – existing Supreme & National Court proceedings on foot- whether abuse of process

Practise & Procedure - Doctrine of res judicata - Issue of whether or not estoppel applies-application granted with self-executing orders

Apperanaces:
MisielYawip for the Defendants/Applicants
Peterson Kewa for the Complainant/Respondent

Cases Cited:

SCA No.64 of 2007; Telikom PNG Limited v. ICCC &Digicel (PNG) Limited,
Post PNG Ltd v Hubert [2004] PGNC 110; N2656 (11 June 2004)
Allan Stevens v. Kopi Larapa&Ors, [2013] PGNC 227; N5425 (12 October 2013)

RULING ON APPLICATION TO STAY EVICTION

This in an application by the defendants Piunde Limited and HandiiMahn Investment Limited to stay the eviction orders issued by the Kundiawa District court on 2^nd February 2018.

This follows on from a decision by the National Court in Waigani, dismissing the proceedings in OS (Comm) No. 606 of 2017 and a stay order of the Kundiawa District Court of 21^st September 2017 which were self-executing orders. The orders of 21^st September 2017 are;

1. The Application by the second defendant to dismiss the entire proceedings for abuse of process is refused.
2. Eviction orders of 17^th August 2017 as well as the warrant to MS 08 to evict are further stayed pending final determination by the National Court proceedings in OS (Comm) No. 606 of 2017.(emphasis mine)
3. Etc....

The Complainants/ Respondents Kiwiki Enterprise Limited vigorously opposed the application submitting that this could be an abuse of process of the Court and the applicants are precluded from making such an application based on the doctrine of estoppel by issue of ‘res judicata’.The claim arises because of the assertion that the issues in a matter filed at the Kundiawa National Court (WS 278 of 2018) have been already determined in OS 606 of 2017.

The Court then ordered parties to file submissions on the issues and provide case laws to substantiate their respective arguments.

The issue in my view is on of estoppel by operation of the doctrine of res judicata as there are numerous cases filed in different courts by the same parties in relation to the same property in dispute.

Estoppel by Res judicata

In the Supreme Court case of SCA No.64 of 2007; Telikom PNG Limited v. ICCC &Digicel (PNG)Limited, comprising of Injia DCJ. Kirriwom& Cannings JJ, the Court held that;

“The doctrine of res judicata operates when the issues between the parties have already been finally determined by a court or tribunal having authority to do so.”
In the National Court case of Post PNG Ltd v Hubert [2004] PGNC 110; N2656 (11 June 2004), the Court said that;

“The doctrine of res judicata recognizes the practice that a final judgment of a competent Court disposes once and for all of the matters decided’ between the parties so that they ought not to be raised again either between the same parties or their privies, (Cross on EVIDENCE 2nd Australian Edition Ch.13). To raise the issue of estoppel, there must have been a final judgment between the same parties who litigated in the same "capacity and the issues before the Court must be the same as that alleged to have been the subject of adjudication in the previous proceedings": Blair – v – Curran [1939] HCA 23; [1939] HCA 23; (1939) 62 CLR 464.”

In the National Court case of Allan Stevens v. Kopi Larapa&Ors, [2013] PGNC 227; N5425 (12 October 2013) Poole J coming up with a test to apply on whether the issue of res judicata applies said;

“The most notable authority on this point which comes to mind is Marginson v Blackburn Borough Council [1939] 2 KB 426, which sets out the 6 elements to consider in questions of res judicata.

These are:

1. The decision must be judicial

2. The decision must, in fact, be pronounced

3. The tribunal must have had jurisdiction over the parties and the subject matter

4. The decision was final and on its merits

5. The decision determined the same question as that raised in later litigation; and

6. The parties to the later litigation were parties to the earlier litigation.”

Application of the law to this particular case.

There is no dispute by the parties that the doctrine of estoppel by res judicata applies where;

1. The decision must be judicial

2. The decision must, in fact, be pronounced

3. The tribunal must have had jurisdiction over the parties and the subject matter

4. The decision was final and on its merits

5. The decision determined the same question as that raised in later litigation; and

6. The parties to the later litigation were parties to the earlier litigation.

In applying the test in this particular case, it is my view that, the parties are the same, the decision by Judge Harthson on the OS proceedings was final, the decision was a judicial decision, that decision was made by a court of competent jurisdiction, the issues arenot be the same (as fraud was pleaded in WS and not in the OS) the cause of action is different.

Given the above circumstances, in my view not all the requirements of estoppel by res judicata are present in this case hence the Applicants are entitled to make this application. Not only that but there is an appeal on foot against the decision on the OS proceedings and at the same time a WS proceeding has been filed and yet to be determined.

I am also of the view that these matters must be properly addressed by the National Court and not the District Court at this stage as existing matters are filed there and yet to be determined. Orders 4.3 sought in the Supreme Court Appeal No. SCA 10 of 2018 seeks to the District Court eviction orders of 2^nd February 2018 thus act also as a barred to the enforcement of the District Court eviction orders.

On the other end, having considered the entire circumstances of this particular case I am of the view that there is a need to preserve the status quo of the entire case and in doing so I am of the view that the balance of convenience favours the Applicants/Defendants in extending the period of the stay on the eviction orders pending any applications at the National Court and/or the outcome of the WS proceedings now before the Kundiawa National Court as well as the Appeal to the Supreme Court against the decision of the National Court in Port Moresby in relation to the OS proceedings that was dismissed.

In finding so, the formal court orders are;

1. The eviction orders of 2^nd February 2018 are stayed pending the outcome of the Supreme Court Appeal in SCA No. 10 0f 2018 and the outcome of the National Court proceedings in WS No. 278 of 2018.
2. Costs be in the cause.

Orders accordingly.