Tommbe v Masket [2016] PGNC 31; N6202 (24 February 2016)

N6202

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. No. 893 of 2014

BETWEEN:

ARNOLD TOMMBE for and on behalf of members of the Endakikin Sub –clan
Plaintiff

AND

MATHEW MASKET
First Defendant

AND

PAKIPU INVESTMENT LIMITED
Second Defendant

AND

MICAH PITPIT as Commissioner of Land Titles Commission

AND

LAND TITLES COMMISSION
Fourth Defendant

AND

BENJAMIN SAMSON, in his capacity as Acting Registrar of Titles, Department of Lands and Physical Planning
Fifth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Ipang J
2015: 15 June
2016: 24 February

CIVIL – MOTION – Second Defendant's motion to dismiss proceedings for abuse of Court process – Order 12 Rule 40 (1) (b) (c) National Court Rules (NCR)

CIVIL – MOTION – Plaintiff's motion seeking interim retraining orders, restraining defendants not to conduct any transactions or activities on the land described as Portion 299C " Sangurap" Wabag, Enga Province – Order 12 Rule 1 National Court Rules (NCR).

Cases Cited:

Patterson v. Lawyer Statutory Committee ( 2005) SC 822

Counsel:

S. Japson, for the Plaintiff
L. Kaindi, for the Defendants

RULING

24th February, 2016

1. IPANG J: There are two (2) motions before me, one is filed by the Second Defendant and one is filed by the Plaintiff on the 16th December, 2014. I will deal with the Second Defendant's motion to have the proceeding dismissed first and later deal with Plaintiff's motion in the event that orders sought by Second Defendant is not granted. The Second Defendant Pikipu Investment Limited filed its motion on the 9th April, 2015, seeking the following orders:
   
   1. That the proceedings be dismissed pursuant to Order 12 Rule 40 (1) (b) (c) of the National Court Rules (NCR) for;
      
      • (a) Abuse of process of the Court;
        
      • (b) Incompetent as the plaintiff has no standing and lack capacity to institute proceedings;
        
   2. Cost of and incidental to this Application and the entire proceeding be paid by the plaintiff on an indemnity basis.
      
   3. Any further orders that Court deems appropriate.
      

2. This motion is supported by affidavit of Dr. Samson Amean sworn and filed on the 31st of March, 2015. I will refer to Dr. Amean's affidavit to discuss the grounds relied on to seek the orders in the motion. At this juncture, it is worth looking at the Originating Summons (OS) filed by the plaintiff.

Originating Summons

3. The plaintiff filed an Originating Summons (OS) on the 16th December, 2014, claiming or seeking the following relief:

(1) An Order declaring that the State Lease described as Portion 299C "Sangurap" Wabag, Enga Province being whole of the land contained in Certificate of Title Volume 33, Folio 163( the land) being declared as Customary land as relevant provisions under the Land (Tenure Conversion) Act, 1963 have not being complied with.

(2) An order that the title initially issued to the First Defendant and then to the Second Defendant on the property State Lease Portion 299C " Sangurap", Wabag, Enga Province, volume 33, Folio 163 be declared as illegal and unlawful and therefore be declared null and void.

(3) An order that the land, State Lease Portion 299C "Sangurap", Wabag, Enga Province, Volume 33, Folio 163 be declared as customary land and the ownership go to the plaintiff who are the genuine landowners of the said land.

(4) The Defendants be restrained from conducting any transaction or dealings on the property Portion 299C "Sangurap", Wabag, Enga Province, Volume 33, Folio 163 until the substantives issues raised here in the proceeding are dealt with.

(5) The second Defendant's, its employees agents and/or servants be restrained from engaging any police officers from within or outside of Wabag, Enga Province in order to carry out any developments or activities on the land until issues raised herein the proceedings are dealt with.

(6) Cost of the proceedings to be paid by the Defendants.

(7) Such other orders the Court deems appropriate.

The motion filed by the Second Defendant Pakipu Investment

4. Let me re-visit the affidavit of Dr. Samson Amean and look at the grounds the second Defendant relied on to move his motion. The grounds relied on by the second Defendant are:

(i) Second Defendant Pakipu Investment Limited – Owner of the property State Lease Volume 33, Folio 163, Portion 299C, Milinch Fourmil, Wapenamanda, Wabag, Enga Province.

• The second Defendant is claiming to be registered proprietor of the property described. Dr. Samson Amean, the proprietor of the second Defendant stated that prior to the transfer of the said property to the second Defendant, the plaintiff was a Lessee who sub-leased the property from the first Defendant who was the then Landlord under a sub –leased agreement.
  

(ii) Multiple or duplication of proceedings

(a) A similar or identical proceeding to this current proceeding was instituted before Wabag National Court registered as OS.159 of 2009 on the 16th of March, 2009 involving same parties also sought declaratory and injunctive orders based on the claim that the property was customary land.

(b) Simultaneously, the plaintiff instituted an identical or duplicated proceeding at the Wagani National Court registered as OS 48 of 2009 seeking exactly the same relief sought in OS. No. 159 of 2009 and the current proceeding OS. No. 893 of 2014.

(c) On the 13th February, 2009, Justice Davani ordered the discontinuation of the proceeding OS. No. 48 of 2009 for been abuse of Court process seeking same reliefs and based on same cause of action in the proceeding OS. 159 of 2009 in Wabag National Court.

(d) On the 22nd of April, 2009 the plaintiff in the proceedings OS. No.159 of 2009 obtained interim injunctive order against the Defendants before the Wabag National Court. The said interim injunctive order prevented the defendants from doing anything on the land or the property.

(e) On the 1st of August, 2011 Acting Justice Gauli dismissed the proceedings OS. No. 159 of 2009 in its entirety for want of prosecution before the Wabag National Court.

(f) On the 11th April, 2012 some eight months later the plaintiff filed a Notice of Motion seeking to set aside the orders of 1st August 2011. On the 9th December, 2014, the plaintiff's Notice of Motion filed on the 11th April, 2012 was heard at Wabag National Court and the leave was granted by the said Court to plaintiff to withdraw the said motion. The plaintiff then filed the current proceeding OS. No. 893 of 2014 seeking the same relief as sought in the other proceedings as described.

Response by the Plaintiff

5. In the reply to the second Defendant's motion submitted that the title to the land described as Portion 299C "Sangurap" Wabag, Enga Province, volume 33, Folio 163 is in dispute. Plaintiff stated that the portion of the land has been a subject of various District and Local Land Courts since 1984 and that various orders were issued by the Wabag District Land Court regarding the ownership of the subject land. Thus the plaintiff submitted that since the land was customary land the Land Title Commission did not make a decision to convert the land to a State lease.

6. Plaintiff claimed the first Defendant was living on the property illegally and had surveyed the land without the knowledge of the customary land owners and without any Land Titles Commission's decision, converted the land into a State lease.

7. In relation to the two (2) proceedings one before the National Court in Waigani (OS. No. 48 of 2009) and one in Wabag (OS. No. 159 of 2009), the one in Waigani was withdrawn and the one in Wabag was dismissed for want of prosecution. Plaintiff's submission is that the institution of the current proceedings is not an abuse of process as the merits of the case as to the genuineness of the title obtained by the First Defendant was never determined.

Court Ruling

8. On the 13th February, 2009 Justice Davani ordered for the proceeding OS No. 48 of 2009 in Waigani to be discontinued on the basis that there was a similar or identical proceeding OS. No. 159 of 2009 filed before Wabag National Court. The plaintiff's motive of filing same proceedings involving same parties and same cause of action in two (2) different Courts is very much appealing. The land subject of this and other previous proceedings filed is situated in Wabag.

9. The proceeding before Wabag National Court, OS. No. 159 of 2009 was dismissed on the 01st of August, 2011 for want of prosecution.

10. On the 11th April, 2012 plaintiff filed a motion before Wabag National Court to set aside orders of 01st August, 2011 which dismiss the proceeding OS. No. 159 of 2009. On 09th December, 2014 the motion was heard and leave was granted to the plaintiff to withdraw the motion.

11. This effectively means the order of 01st August, 2011 dismissing the proceedings OS. No. 159 of 2009 still stands. The plaintiff cannot and without doing anything with that order, bypass that dismissal order and file fresh proceedings involving same partners and the same cause of action. To me this is clear abuse of Court process.

12. It is a trite law that a court order is a court order whether it is obtained regular or irregular, and must be complied with at all times unless it is stayed or set aside. The Supreme Court in Patterson v. Lawyer Statutory Committee (2005) SC822 clearly stated that;

"... the law is clear that unless set aside by a Court of competent jurisdiction, the order remained. That is the common law position, which we have observed in this jurisdiction according to the Court of Appeal decision in Haldkinson v. Haldkinson [1952] 2 All E. R 567 which states (per Lomer, LJ) at P. 569:

"It is the plain and unqualified obligation of every person against or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. This uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham LC, said in Chuck .v Cremen (1846] 1 Coop T Cott 205: [1846] EngR 924; 47 ER 820: "A party who knows of an order whether null or void, regular or irregular, cannot be permitted to disobey it... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or void or whether it was regular or irregular. That they should come to the Court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it was plain. He should apply to the Court that it might be discharged. As long as it existed it must not be disobeyed.

13. Due to this reason, I grant orders sought in the second Defendant's motion. This effectively puts an end to plaintiff's' proceedings OS. No. 893 of 2014 and therefore there is no need for me to deal with plaintiff's motion filed on the 16th December, 2014.

Order

1. Plaintiff proceedings OS No. 893 of 2014 is dismissed for being abuse of court process.
   
2. Plaintiff shall meet the Defendants costs of this proceedings to be taxed if not be agreed.
   

Japson & Associates: Lawyers for Plaintiff
M. S. Wagambie Lawyers: Lawyers for Defendants