Kaman v Kaman [2018] PGNC 553; N7716 (17 May 2018)

N7716

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 656 OF 2013

BETWEEN:
GEORGE KAMAN, KUTNE KAMAN, VERONICA KAMAN, MARY KAMAN, MICHAEL KAMAN, TANYA KAMAN, NATASHA KAMAN as Beneficiaries under CUSTOM of the Estate of the Late BRUNKE KEGLA KAMAN
Plaintiff

AND:
FREDA KAMAN
First Defendant

AND:
HENRY WASA as the Registrar of Titles
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Dingake J
2018 : 17^th May

Counsel:

Mr. S Malaga, for the Plaintiff
Mr. D Wayne, for the First Defendant
Ms. M. Elisha, for the Second & Third Defendants

17^th May, 2018

1. DINGAKE J: This is an application brought by the First Defendant (applicant) to dismiss the proceedings brought by the Plaintiffs in WS No. 656 of 2013.
2. The application is brought pursuant to Order 12 Rule 40(1) (a) and Order 12 Rule 40(1) (b) and (c) of the National Court Rules.

3. In the alternative, the Applicant, pursuant to Order 12 Rule 8(3) (a) of National Court Rules, prays the Court to set aside the Ex parte Orders ordered on 18^th May, 2017.

4. The background to this matter is that the Plaintiffs on the 28^th of June, 2013 issued a Writ of Summons endorsed with a Statement of Claim, seeking, in effect, to cancel the registration of a piece of land, being Allotment 01, Section 2, Volume 13, Folio 119, Kundiawa, Simbu Province, in the name of the First Defendant.

5. The Plaintiffs’ claim to be customary beneficiaries of the estate of Brunke Kegla Kaman (the deceased).

6. The First Defendant was one of the deceased wives. The Plaintiffs’ claimed that the aforesaid Allotment was made to her fraudulently.

7. An Applicant who approaches the Court in terms of a particular rule or rules of procedure bears the onus of establishing the factors or consideration relevant to that particular rule he has invoked.

8. I have considered the factors that have to be established in relation to each of the rules the Applicant has invoked for the relief sought.

9. The Court’s power to dismiss proceedings in terms of Order 12 Rule 40 1(a) should be used sparingly and only in cases which are plain and obvious and this is not one such case, having regard to the weighty consideration that a litigant constitutional right to be heard should not be lightly disregarded.

10. With respect to Order 40 (1) (b) there is nothing to suggest that the proceedings are futile and bound to fail if the matter proceeds to trial or that there are a sham intended, to harass the Defendants.

11. In my view, the alternative relief does not avail the Applicant, if only for the reason that the application does not offer a reasonable explanation why it took close to four (4) years to invoke the provisions of Order 12, Rule 8 (3) of the National Court Rules. The delay in bringing the application, appears to me in the circumstances of this case to be inordinate.

12. The Writ of Summons was filed with this Court on the 28^th of June, 2013. The Notice of Motion for the dismissal of this proceedings was filed on the 21^st of June, 2017, close to four (4) years after the Writ of Summons was served to seek the relief sought in terms of Order 12 Rule 8(3).

13. In the result the application is without merit and it is refused.

___________________________________________________________
Sanol Malaga Lawyers: Lawyers for the Plaintiffs
Express Legal: Lawyers for the First Defendant
Office of the Solicitor General: Lawyers for the Second & Third Defendants