Lynn v Yaku [2019] PGDC 12; DC4031 (16 May 2019)

DC4031

PAPUANEW GUINEA

District Courts Act, Chapter No 40

[In the Civil Jurisdictions of the District Court Held at Wabag]

DC No 22 of 2017

BETWEEN:
PETERSON LYNN
(Complainant)

AND:
LESLY YAKU
(First Defendant)

AND:
THE POLICE STATION COMMANDER; WABAG POLICE STATION
(Second Defendant)

Goroka & Wabag: C Inkisopo

2018: 3^rd & 12^th March
2019: 16^th May

District Courts Act Chapter No 40 – district Court, Court of limited jurisdiction - practice and procedures at District Court set out and defined by Act – Powers and jurisdiction defined and their applications demarcated by Statute -

Application by way of Complaint and Summons thereupon seeking restraining Orders from looming “forced eviction” from own living accommodation built upon express permission of proprietor prior to title transmission –

Common law principle of equity adopted as part of the underlying law at Independence under Schedule 2 of the National Constitution – equity will apply in appropriate cases to ameliorate hardships caused by strict rules of law -

Common law principle res judicata – the following to exist for principle res judicata to apply: parties & issues must be the same – previous judgment must have extinguished foundation of action; - in other words, the result is final and conclusive and it binds every other Court -

Statutes, Rules, Regulations

1: The Constitution of the Independent State of Papua New Guinea

2: District Courts Act, Chapter No 40

PNG Cases cited:

1: PNG Harbours Board -vs- Breni Kora (2005) N2534

Materials consulted and adopted:

1: Harold Greville Hanbury: “Modern Equity” [1969] Stevens & Sons Limited, 9^th Edition

16^th May, 2019 JUDGMENT

C Inkisopo: Complainant filed a Summons upon a Complaint dated 1st August, 2017 seeking an urgent order for restraint against the Defendants from an impending forced eviction from his own dwelling accommodation located on a certain property more described as Section 23, Allotment 55, Township of Wabag in the Enga Province.

Background Facts:

2: On the evening of 26^th June, 2017 a section of Wabag Police Mobile Squad 11 (MS 11) descended on the Complainant at his dwelling house and verbally told him that they have authority and legal documents from the owner of the property (Defendant) to have Complainant removed from the said property immediately; if not by force.

3: The Complainant ran to the Court and filed this case seeking an urgent restraining Order against the Defendants from the looming forced ejectment from the subject dwelling. The Court granted him an immediate reprieve in the nature of an interim ex-parte restraining Order against the Defendants dated 5^th September, 2017 from carrying out their intended forced eviction of the Complainant from his own dwelling house.

4: A couple of days later, a group of Policemen (MS 11) led by their Unit Commander, Sgt Moses Gene came into the District Court Registry Office accompanied by the First Defendant (Mr Lesly Yaku) desiring to see me as the presiding Magistrate who signed the Restraining Order.

5: When I came out into the Registry from my Chambers, the Defendant began producing documents and started arguing and presenting his case right before me in the Registry Office. The Complainant was also present in the Registry. I could not accept what was happening so politely explained to the Policemen and Mr Yaku that the matter is now before the Court so we’ll leave everything as they are until the next Court appearance when we shall all talk,

6: Even better, Mr Yaku was told he could do well filing his responding affidavits to the Complainant’s claim and have same filed and served and return to Court when he would be entitled to say what he’d wish to say and be heard in open Court.

7: On the matter’s next return date, Mr Yaku had already duly filed and served his responding Affidavit and returned to Court. However, on the Court file, the Court noted two (2) sets of affidavits purportedly filed by the Defendant, Lesley Yaku; one filed dated 28^th September, 2017 and the other filed dated 27^th October, 2017.

8: On the 12^th October when the matter returned for its first mention after the interim Order was issued, both parties appeared. The Court in its efforts to progressing the matter to a speedy conclusion went through the file and discovered on file two (2) sets of Affidavits purporting to have been filed by Mr Yaku; one dated 28^th September, 2017 and the other filed dated 27^th October, 2017 both of which containing almost identical contents complete with Annexures. In its attempt to verifying all materials like Affidavits that needed to have been filed by the Parties, especially Lesley Yaku, the Court went through the file and confirmed item by item with each of the parties; and noted those two (2) lots of Affidavits; one dated 27/10/2017 and the other dated 28/09/2017 and the fact of the existence of two (2) separate sets of Affidavits was announced in open Court to which announcement, the Defendant rose to his feet and declared that the one filed dated 28^th September was not his document, he did not file that but the one dated 27^th October, 2017 is.

9: Notwithstanding Lesly Yaku’s declaration and confirmation of one Affidavit to the exclusion of the other, the Court took note of Defendant’s such protest and took a closer look and re-look at the two (2) sets of Affidavit and studied them carefully over and over and noticed the signatures on both documents purporting to being that of Lesly Yaku appear clear to me to being identical; and if not they appear to me to be exactly the same; annexing thereto almost the same sets of Annexures.

10: Even though that issue did not make sense to me when Defendant is denying a document having been filed prior to the Court ordered return date of 12^th October, 2017; it seemed weird to me that Lesly Yaku is adamant with his claim that he did file the one bearing the date 27^th October, 2017 and not the 28^th September one when we were in Court on 12^th October, 2017.

11: But upon a closer re-look at the file and on reading the contents of the affidavit of 27/10/2017, it became clear that this one was filed in support of a Notice of Motion he filed dated 30^th October, 2017 seeking the dismissal of the Complainant’s claim for being frivolous, vexatious and an abuse of the process and further claiming that Complainant was trying to re-activate a dead and closed case. I would have thought that the affidavit of 28/09/2017 was one he would have filed in defence against the Complainant’s claim as directed before he attended Court in answer to the claim. But he denies; meaning he has offered nothing in his defence against the Complainant’s claim.

12: In both of these Affidavits, the Defendant is saying that Court proceedings in this matter has already been settled when he initially and successfully took out eviction proceedings against the Complainant from this very subject property. To substantiate this claim, he annexed copies of Court documents together with a copy of an Order for eviction dated 29^th October, 2004.

Motion on Notice by Defendant seeking Dismissal of Complainant’s case

13: In order to better grasp and appreciate the issues to resolve in this case, and for the purpose of dealing with the Defendant’s Motion on Notice filed dated 30^th October, 2017, I propose to set out here the factual background of the case and each of the parties’ respective cases

Complainant’s case

14: The Complainant came to Court and took out this Restraining Order against the Defendants from an impending forced eviction from a certain property more described as Section 23, Allotment 55, Wabag Township; transferred and registered in the name of the Defendant on 17th September, 1992. Prior to the title transmission period, the (Defendant) was occupying the said property as a living-in public servant tenant on that vacant State (NHC) property that was then existing. The Complainant and the Defendant back then enjoyed a very special personal relationship; if not a very cool and a cordial one; in that they were married to two (2) sisters and founded a very good family bond back then.

14: Complainant claims that it was during those days that the Defendant proposed that he (Complainant) should purchase the property; the Complainant then being a well-doing business man with assets and resources at his disposal. The Complainant further says that; in proposing for him to purchase that vacant plot, he also proposed that he put up a dwelling house as actual physical improvement to the property that would enable him become eligible for title transmission later over the property.

15: In keeping with that understanding and commitment, the Complainant says that the Defendant sold him a portion of that property for the amount of K20, 000.00. He says he paid Defendant K7, 250.00 as up-front payment for the property in accord with their agreement and understanding. Complainant says he next began constructing a permanent H60 type dwelling house at an estimated cost of over K80, 000.00.

16: With the substantial physical improvement erected on the subject property, the Defendant was rendered eligible to be transmitted the title and he indeed did obtain the title over the property thereafter. The Complainant says he continued living on the property in the house he put up at his own costs with nil contributions forthcoming from the Defendant even though the Defendant reaped the net benefit immensely by being rendered eligible for the transmission of the title to him over the property.

17: The Complainant claims; the Defendant after having have obtained the title to the property, filed eviction proceedings against him (Complainant) citing the Complainant to being illegally occupying the subject property under the provisions of the Summary Ejectment Act. The matter seemingly concluded with an ex-parte eviction order issued against him in favour of the Defendant.

18: Complainant went on to say that he could not take any further action in the matter to protect himself and his interest because at that material time he was fatally injured by his own son when he suffered a broken frontal aspect of his skull which rendered him medically unfit and incapable of rationalizing and doing anything. When the eviction order was granted, he filed a separate civil claim at the National Court at Wabag via a Writ of Summons (WS No 446 of 2004) against the Defendant for breach of agreement as well as for the property development he did carry out at the Defendant’s specific invitation prior to the title transmission. This National Court proceeding was dismissed by the Wabag National Court per Justice Graham Ellis. Complainant appealed to the Supreme Court and a three (3) men Supreme Court Bench also dismissed the Appeal for want of prosecution. He said he failed in all his higher Courts’ proceedings for want of prosecution; all because as he says; he was not in the right physical mental state of mind to properly prosecute them at those various stages of the proceedings.

19: Even with the fact of the existence of the eviction order issued against him to vacate the subject property, he said he just could not leave the dwelling structure he erected on the subject property with his own resources at the specific request and permission of the Defendant. He claims that; whilst the ex-parte order for eviction exists, the issue of the dwelling structure he erected remained to be resolved; as he laments; the Defendant should not just be allowed either in strict law or equity to take over a dwelling structure put up by him at a substantial cost at the Defendant’s specific request and permission. This then spawns several legal issues to be addressed in this judgment.

20: The questions are: (1) should the Defendant be allowed to unilaterally take over a property of substantial value put up at his very own permission and invitation just by merely wielding a Court eviction Order on the back of the property title deed? (2) Will both strict rules of law and equity permit that to happen? I should think not!

Defendant’s Case

20: The Defendant’s contention against the Complainant’s claim are two-fold;-

➢ That he is the title holder of the subject property and that Complainant has no right nor authority whatsoever to continue to occupy the subject property;

➢ That he has an Order for eviction against the Complainant already in place over the very same subject property that the Complainant seemingly possesses an ex-parte restraining order from forced eviction which he argues should not stand but be barred for being res judicata.

21: Defendant says in his affidavit of 27^th October, 2018 that the initial proceeding was filed back in 2002 by himself challenging the ownership of the property in Wabag Town (sic). The matter went through the different stages starting from the District Court up until it reached the Supreme Court when Complainant appealed to the National Court which dismissed his appeal and when he next did to the Supreme Court, a three (3) men Supreme Court Bench at Waigani dismissed it for want of prosecution.

22: In his supporting Affidavit in response, the Defendant said that his eviction order stands and that the Complainant should not be coming back to this Court to resurrect a dead case; as he claims that the Complainant did appeal against his eviction order that got dismissed by the Wabag National Court. He claims that a further Appeal to the Supreme Court got dismissed again by a three (3) men Supreme Court Bench. He quipped; why should this matter come back down to the District Court when the Highest Court of the land had already put an end to it?

23: The primary issue now for me to consider and settle is as per the Defendant’s second relief in his Notice of Motion of 30^th October, 2017;

“Is the claim by the Complainant frivolous, vexatious and an abuse of the Court process in re-filing the very same proceeding which was already dealt with in the three (3) men Supreme Court Bench in Waigani?”

24: The Defendant in what he is saying is basically, in effect, raising and pleading the common law principle res judicata in claiming that the matter has already been dealt with and is a dead matter. Res judicata is; as a common law legal principle adopted as part of the underlying laws of Papua New Guinea that holds in this jurisdiction in appropriate cases that basically says that a matter that has been adjudicated upon and concluded by a Court of competent jurisdiction cannot be re-litigated or re-opened later in another Court; its justification being to achieving finalities to litigations. (Oxford Dictionary of Law; New Edition, Market House Books Ltd, 1997)

In PNG Harbours Board -vs- Breni Kora [2005] N2534 Injia DCJ. (As he then was) laid out the applicability elements of this principle to being as follows;

1: The Parties in both cases must be the same;

2: The issues in both cases must be the same;

3: The previous judgment extinguished the foundation of the action; the result is final and conclusive and it binds every other Court.

4: A Court of competent jurisdiction made the first decision,

25: It is said that the party relying on it must demonstrate the presence of all the above ingredients to successfully plead res judicata. As I glean from what the Respondent/Defendant is saying, he is in fact raising this principle to claim that this matter has already been through all the three (3) levels of the Courts in this Country and is a dead case and Respondent/Complainant cannot raise it again.

Applicability question of the principle to instant case

26: When perusing the file to do up my judgment, I discovered a number of facts presented by the Applicant/Defendant in his Affidavit in support of his Motion on Notice to containing some facts that are but misleading in nature; at least from materials he filed and presently on file; a number of which are;

➢ The Wabag National Court proceeding was per a Writ of Summons proceeding entitled WS No 446 of 2004; and this definitely was not an Appeal as the Applicant tries to have the Court believe!

➢ The said Supreme Court order was on an appeal by the Respondent from the Wabag National Court Order on the proceeding titled WS No 446/2004 and not the Appeal on the Eviction Order as the Respondent tries to have the Court believe.

27: So; what do these inaccurate facts mean to this Court in the overall assessment of this case? In any event, this is what the Court seems to find from the materials on file from the Applicant/Defendant’s documents filed in this Court.

28: In attempting to address the applicability question of the principle res judicata, I propose to consider first whether the principle applies on all fours to the facts of our instant case? Firstly, I consider that there is in existence a certain eviction order by the District Court dated 29^th October, 2004. I note that the said order ordered the Defendant Peterson Lynn to vacate a certain premises described more as Allotment 55, Section 23. With the order specifying the particular property, Complainant says; the subject Order does not say anything about the dwelling house he put up on the property at substantial costs with Defendant’s own permission prior to the title transmission. This point of the Complainant’s argument seems to me to make sense and demonstrates substantial merit in it.

29: The Complainant has come to Court and obtained a restraining Order against being removed by force from his own dwelling house located on a portion of the very property Applicant/Defendant is in possession of a valid legal title. The issue here as I glean is rather different; in that Respondent/Complainant procured a restraining order from this Court against the Defendant to forestall an immediate forced removal from a dwelling home he himself put up at the Defendant’s own invitation and permission prior to him being transferred the title.

30: The next immediate irresistible question is;

Is it or would it be fair and equitable for the Defendant to turn around and tell the Complainant to go away from the property after he had reaped real benefits from his (Complainant’s) co ntribution by way of erecting a costly physical structural improvement to the subject property that went a great way in propelling his eligibility status to subsequently being granted the property title?

31: In my humble view; it would be grossly unconscionable to think of doing what the Defendant is seeking to have the Court do; to have the restraining order of 29^th October, 2017 set aside and have the Complainant removed from the property that has now been stalled briefly by the current restraining Order.

31: Kikia -vs- Solowet (2009) N3682, per Cannings J, is a case in point where the father of four grown children successfully taking out eviction orders from the Kimbe District Court against his grown-up children and their respective families following a serious fallout leading to him (father) being jailed. The Children Defendants appealed the decision of the Kimbe District Court’s eviction orders and the National Court per Cannings J held that the Defendants could not be illegal occupiers; in that as the children of the proprietor and by reason of them being his children they could not have been unlawfully on the property in the first place; in other words, they did possess equitable rights to occupy the property of their father!

32: In our instant case, the Complainant was permitted by the Defendant [being brothers through marriage to two (2) sisters] to put up a dwelling structure. The Respondent/Complainant did not come onto the subject property illegally or without licence or permission. He therefore could not be an “illegal occupier” (Kikia -vs-Solowet) (supra) of the property in issue to be thrown out just like that.

33: In our present case, it seems obvious that the Applicant/Defendant is avoiding touching this sticky dwelling structure issue that Respondent put up at his own expense which in my humble view is another connected but an important relevant issue of its own not addressed at all in the earlier proceeding; especially in the decision earlier of this Court of 29^th October, 2004

.

34: Hence, in my humble view, I am able to find that the issues involved are different and the foundation of the Defendant’s claim is not concluded by the issuance of that 29^th October, 2004 eviction order as the dwelling house issue is an integral matter to be also dealt with and resolved; meaning the earlier decision did not extinguish the foundation of the matter of the claim between the Parties.

35: In my view, the Defendant could not just separate the property ownership issue from the dwelling house ownership issue as it is a permanent fixture to the property and to deal with both issues holistically and resolved accordingly. Hence it can clearly be seen that the Applicant/Defendant’s eviction order of 29/10/2004 did not in any way conclude nor extinguished the foundation of the Defendant’s original eviction claim because the question of the dwelling house ownership still lurks in the overall backdrop of all this to be dealt with and resolved.

36: In the final analysis, I am of the humble view that the Applicant’s initial eviction claim did not extinguish the foundation of the Defendant’s eviction claim because the integral issue of the Complainant’s dwelling house is a part and parcel issue that must be holistically dealt with and resolved that cannot in my humble view be separated and dealt with on a piece-meal basis of convenience and benefit only to the Applicant/Defendant.

Application of principles of Law to facts

37: On the basis of the above discussion, I find that res judicata will and does not apply to our instant case; in that, the issues are not the same namely the initial claim by the Defendant was for eviction from a State lease property by the proprietor whilst Complainant’s in the present case is a case of restraining order against a looming forceful removal from own dwelling house on the said subject property.

38: The Defendant’s claim of the Complainant having have exhausted all appeals avenues up to the Supreme Court as a fact I find is a deliberate grossly misleading untruth perpetuated before this Court by the Applicant, for whatever reason; only known to himself against the blunt facts that are on records for all to see, verify and confirm.

39: Applying the legal principles of equity and res judicata to the facts of our instant case, firstly in my humble view, res judicata does not apply to bar the Respondent/Complainant from taking his present grievance to Court and obtaining the relief he sought and did obtain. The reason being that the dwelling structure that Complainant put up on the subject property at Defendant’s own invitation is a separate issue to that of the title to the property on which the subject dwelling structure locates. They are two (2) distinct issues to be separately and appropriately resolved.

40: Then on hindsight; and in equity; Defendant cannot just take over a property put up at substantial costs by merely wielding an eviction order just like that! The common law principle of equity adopted as part of our underlying law at Independence under Schedule 2 of the National Constitution applies in appropriate cases - such as in this case - to ameliorate the harsh results caused by the application of strict rules of law. H G Hanbury in his “Modern Equity” [1969] Stevens & Sons Limited, 9^th Edition at page 4 puts it more succinctly in the following way;-

“Developed systems of law have been assisted by the introduction of discretionary power to do justice where strict rules of law cause hardships”

41: In the final upshot, I do not agree and accept that the Complainant’s actions in coming to this Court and procuring an immediate Order for restraint against being evicted by force from his own dwelling house on the subject property to being offensive, frivolous, vexatious and an abuse of the process; in that, in my humble view, there is a real substantial issue involved that needs to be properly dealt with and resolved that cannot just willy-nilly be subsumed into the Defendant’s property Title proprietorship and glossed over on the back of that Title and the existing District Court Eviction Order of 29^th October, 2004.

Findings of Facts

42: On the basis of the above discussions, I make the following determinations based on materials from both parties before this Court;-

➢ The Complainant’s claim discloses an important cause for action at law; in that the question of how to deal with including what to do with the dwelling structure put up by the Complainant on the very subject property remains a big deal to resolve that I consider cannot just be subsumed into the property title proprietorship of the Defendant’s and get trodden over and just forgotten.

➢ The Complainant’s claim is not to my mind frivolous, vexatious and an abuse of the process because I find the Complainant’s claim to be but very different and has substantial legal merit that needs to be dealt with appropriately in an appropriate avenue or forum.

➢ The Complainant’s claim is not and cannot be barred from being res judicata; in that the lease title proprietorship and the dwelling structure ownership issues are factually connected but presenting vastly different legal issues that need to be properly and appropriately dealt with and resolved. In other words, the Defendant has failed to bring the Complainant’s claim to within the basic tenet and ambit of the principle res judicata in order to bar the Complainant from coming back to this Court in the manner he did.

Conclusion

43: On the basis of the above discussions, I reach the conclusion that the Applicant’s Motion on Notice filed 30^th of October, 2017 must fail and the several relieves he seeks therein are all dismissed in all their entireties as being without merit,

Formal Orders of Court

44: The following are the formal Orders of this Court;-

1: The Applicant’s Motion on Notice filed dated 30^th of October, 2017 is refused and dismissed in all its entirety;

2: The several relieves that the Applicant seeks in his Motion on Notice are all Dismissed as being without merit;

3: The Restraining Order of this Court of 5^th September, 2017 shall remain valid and effective until the issue and status of the Dwelling House of the Complainant’s put up by and upon the permission and invitation of the Defendant is dealt with and resolved fully and completely or until a mutually acceptable outcome is achieved.

4: As costs are a matter for judicial discretion, I order each party to bear own costs of this proceeding.

Lawyers:

Nil lawyers appeared in this case for each Party