Tulia v Lama [1998] PGNC 67; N1824 (24 July 1998)

Unreported National Court Decisions

N1824

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 1112 OF 1995
BETWEEN:
MENAPO TULIA AND OTHERS
- PLAINTIFF -
AN>EKE LAME LAMA AND OTHERS
- NDENTS -

Goroka

Sawong J
10 July 1998
24 July 1998

b>PRA AND PROCEDURE - Res judicata - Estoppel - cl - claim for damages for raid on village bage by villagers from another village - separate causes of action -

Cases Cited

WS No. 968 of 1993 - undated judgement by Salika J

Counsel

Mr Zimike, for the Plaintiffs

Mr Kumura, for the Respondents

24 July 1998

SAWONG J: In action the plaintiffs bffs bring a representative action on behalf of the members of the Wiliri and Awari tribes and on their own behalf, for damages for destruction and loss of various properties, loss of production from business and mental distress. Theged destruction were sare said to have been committed by the 11 defendants named in the Writ of Summons.

By a notice of motion the defendants move that whole of the proceedings be dismissed on the basis of either O. 11 R. 7 or O. 12 R. 40 of the National Court Rules. These rule in the followingowing terms.

O. 11 R. 7

“7. Setting Aside

(1) Tue Coayt mn m oion ty they the peramed in a summons, set asid aside the summons wholly or in part.

(2) ;ټ Notice tice of a mf a motion under Sub-rule (1) must be filed ervedhe pan whose request test the suhe summonsmmons was issued.”

O. 12 R. 40

“40. Fity, etc.

(

(1) ;&#16ere in any any proceeroceedings it appears to the Court that in relation to the proceedings generally or intion y clar reln theeedin/p>

(a

(a)&#16) ;ټ no0; no reasonablenable cble cause ause of acof action is disclosed; or

(b) ҈& the proe proceedineedings are frivolous or vexatious; or

(c) the proneedires a aoanthce thcess of the Court,

the Court may order that the proceedings be stayed or d or dismisismissed generally or in relation to any cfor r in toceed

) #160;&#160  Th0; oue Court may receiveceive evidence on the hearing of an application for an order under Sub-rule (1).”

Essentially Mr Zimike and Mr Kumura relied on the principles of res judicata and or equitable estoppel. The essef their submissionssions was that whole claim or cause of action had been dealt with by the National Court previously and theref160; the present proceedings is an abuse of the court process. they relied on t on the uthe undated decision of Salika J in WS 968 of 1993.

In that case (WS 968/93) the same plaintiff, as in the current proceedings, brought represent action against Mr Dick Munk Mune, three policemen, Mr Eke Lama and the State. Mr Lama was the defendantndant in that proceeding. On the application of the plaintiffs, he was removed from that proceedings as a defendant. In the current proceehe has now been named as First Defendant. The cause ouse of action in WS 968 and the current cause of action arose from the sncident.

Before I turn to the arguments and to the consideration of the decision in n in WS 968, I think it is appropriate to ut the proper and appropriaopriate legal principle on the issue of whether the current proceedings is res judicata or not.

Mr Zimike and Mr Kumura (who appeared as a friend of the court) submitted that the principles of res judicata was applicable in the current proceedings. Consble reliance was placeplaced on paragraphs 1528 and 1536 of Halsbury’s Laws of England, 4th edition to support their arguments.

In Halsbury’s Laws of England (4th ed.), vol. 16, para 1528, under the sub heading “Essentials of res judicata” the editos:

“8220;In order that a defence of res judicata may succeed it is necessary to show not only that the cause of action was the same but also that the plaintiff had the opportunityecovering and but for his ohis own fault might have recovered in the first action that which he seeks to recover in the second. A plea of res judicata must show either an actual merger or that the same point has been actually decided between the parties ....”

In the same text, at para 1536, under the sub heading “Cause of Action Merged in the Judgement” the editor says:

“The defence of “judgement recovered”, arising as it does out of res judicata, has much in common with estoppel by record, although it is not founded upon it. A plaintiff ws once sued a ed a defendant to judgment cannot, while the judgement stands, though unsatisfied, sue him again for the same cause, not because he is estoprom dsong so (although he, as well as the defendant, ist, is estopped from averring anything contrary to the record), but becahe cause of action is merged in the judgement, which creates an obligation of a higher natu nature. It is also probably trusayo say that a person who has once recovered judgement for a sum of money is estopped from averring that he ought to recover anther sum for the same cause of action”. (emphasis added)

The sube submissionssions raised by the defendants are three fold. I have briefly discussed the first part, that is that the current cause of action is the same as in WS 968.

Thond leg of their submissionssion was that the plaintiffs had the opportunity to recover in the first cause of action but he chose not to, and because of that he is barred from proceeding in the second or subsequent cause of action. The third leg of their submission was that there was an earlier judgement against the villages of Wala village, which was still subsisting.

In my viese submissions overlap each other. I therefore will not treat them separately. 160; In view ofsubmissionssions that were made, it is necessary to refer to and analysis what Salika J said in his decision. At page 7, 9 and his deci decision, hes refes to “Vill;Villagers from Wala, Waru and TimbariRi”. He says, at p. 7:

BACKGROUND

“The backd of the case is that there was a death of one Pialo Kapia apia of Wala Village in the Pangia District of the Southern Highlands Prov The people of Wala village believed that Pialo KapiaKapias death was brought about by sorcery done by some of the plaintiffs. It was because of that death that the villagers from Wala and policeman conducted a raid on the plaintiffs villages. As a resu the raid, polu>policemen and villagers from Wala burnt down houses and cut trees at orders of policemen. There is ear cidence whethwhether the villagers and the policemen were acting together in concert anrt and aiding and abetting each other.&#16is is important because the court has to determine what portion the defendants will be held held responsible for since no Wala villagers are defendants.”

And p. 9, he says:

“On Saturday, the 20/01/90, policemen and villagers from Wala Village and other nearby villagers came to Ambu village. The policemen and tllagersagers of Wala village set houses on fire, including his own and killed or carried away pigs, chickens and cassowaries. TStore goods and goods hous houses were looted by the police and villagers from Wala, Wla, Wanu and Timbari.”

And p. 10, he says:

“Howe cut that in half because I am of the view that the Wala vila villagers should compensate for the other half. This is because tis not suot sufficient evidence that the villagers and the policemen were aiding and abetting each other. I reduce that amto K250.2.”

It is also interesting to note that through out his judgement, ent, the learned trial judge made awards at the Wala villages. In other wthe trial judge udge in his decision in WS 968 has alrs already awarded damages against the defendants from Wala villagers. The no dispute that the awhe awards of damages made by His Honour have remained unsatisfied and is subsisting.

There is noute thae that the current cause of action is the same as the previous one in WS 968. There is ao dispute the Fihe First Defendant is the same person named fifth defendant in WS 968. There is no dispute that he was removed aarty to the proceeding’s previously.

Applying the principles that I have referreferred to the facts of the present case, it is quite clear that the defence of res judicata has been made out. It follows that I a the aphe application.

I order that the whole of the proceedings in this case be dismissed with costs.

Lawyers for the Plaintiffs: Paulus Dowa

awyers for the Respondents: Public Solicitors

#160;