N7713

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 904 OF 2018(CC1)

BETWEEN:
THOMAS MALCOLM OPA CONLIFE as Executor of
the Estate of the Late ALBERT CONLIFE
Plaintiff

AND:
JURA INVESTMENT LIMITED
First Defendant

AND:
STEVEN TONG AND PATSY TONG
Second Defendant

AND:
THE REGISTRAR OF COMPANIES
Third Defendant

AND:
THE REGISTRAR OF TITLES
Fourth Defendant

Waigani:  Dingake J
2018:  19 December

Cases Cited:

Kerry Lerro trading as Hulu Hara Investments Limited v Philip Stagg & Ors (2006) N3050;
Michael Gene v Hamidian-Rad (1999) PNGLR 444;
Telikom PNG Limited v ICC (2008) SC906;

Counsel:

Mr. Alois Jerewai, for the Plaintiff 
Mr. Terry Injia, for the First Defendant
Mr. Bakaman, for the Fourth Defendant

19 December, 2018
1. 	DINGAKE J:	This is an application to dismiss the entire proceedings for disclosing no reasonable cause of action, being frivolous and vexatious and an abuse of process, alternatively to strike out the plaintiff’s amended statement of claim and to dismiss the proceedings for disclosing no reasonable cause of action, causing prejudice and embarrassment and delay in the proceedings and for being an abuse of process.
2. 	The application is brought in terms of Order 12 Rule 1 and Order 12 Rule 40 (1) (a), (b), and (c) of the National Court Rules and Section 155 (4) of the Constitution.
3. 	The above motion was filed with the Court on the 30th of August, 2018.
4. 	I heard the motion on the 25th of September, 2018, and reserved judgment to the 7th of December, 2018 at 9:30am.
5. 	Due to an oversight the judgment was not delivered on the 7th of December, 2018.
6. 	On the 11th of October, 2018, by consent of the parties, this Court, in effect permitted the plaintiff to remain on the property pending the reserved ruling to be delivered on the 7th of December, 2018.
7. 	At the heart of the dispute between the parties is the issue of title over the land described as Allotment 16, Section 54, Hohola, National Capital District, which is the subject of this proceeding.
8. 	In OS No. 460 of 2017, Hartshorn J ruled that the first defendant, which was the plaintiff in these proceedings, has indefeasible title over the property in contention.
9. 	The law with regard to an application for dismissal of proceedings based on Order 12 Rule 40 is settled in this country.
10. 	A cause of action, in law, that a party must disclose in pleadings, refers to a set of facts to justify the right to sue and to obtain the relief sought.
11. 	It follows, in my view, that in a statement of claim, the plaintiff must plead all necessary facts that would entitle him to the relief sought.
12. 	The general attitude of the Courts in this jurisdiction (both the National and Supreme Court) is that a plaintiff who pleads his cause of action clearly in terms of setting out the requisite facts and legal principles necessary to establish a claim would not be chased away from the judgment seat, but the Court would generally not countenance vexatious or frivolous claim, namely claims that cannot succeed or are bound to fail or proceedings that are a sham intended to harass the other party. (Kerry Lerro trading as Hulu Hara Investments Limited v Philip staff, Valentine Kambori & The State (2006) N3050).
13. 	A party who brings a matter to Court, that has been judicially determined, on the merits, is no doubt abusing the Court process. Where a matter has been judicially determined on the merits between the same parties, on the same subject matter, it is in the eyes of law res judicata.
14. 	In this case, in National Proceedings OS No. 460 of 2017, Hartshorn J held that the first defendant has indefeasible title to the same property in contention in this matter, namely, Allotment 16, Section 54, Hohola, National Capital District.
15. 	No appeal has been filed on the matter. In my mind to keep on returning to this Court to litigate over this matter, in one guise or another, when the rights of the parties have finally been determined by a Court, is plainly an abuse of Court process.
16. 	The plaintiff is precluded by law, through the principle of res judicata, from litigating, ad infinitum on a matter where the merits of the case have already been judicially determined.
17. 	The plaintiffs proceedings ought to fail for the reason that they amount to an abuse of Court process and are bound to fail for the reasons stated above.
18. 	However, even, if I were wrong to hold that the proceedings are an abuse of Court and therefore liable to be dismissed; there are many other grounds, taken by the defendants that would invariably lead to the same conclusion of dismissal.  I will highlight only the ones that I consider potent and cogent.
19. 	It is clear from the plaintiff’s statement of claim that the plaintiff seeks orders in the nature of prerogative writs and ought to have proceeded in terms of Order 16 of the National Court Rules, which he failed to do. This being a mandatory process, failure to comply with the rule is an abuse of Court process.
20. 	In the case of Telikom PNG Limited v ICCC (2008) SC906 the Supreme Court held that:
	“A party wishing to challenge the decision of a governmental body or public authority must use Order 16 of the National Court Rules if orders in the nature of prerogative writs are sought. If only an injunction or declaration is sought, the plaintiff has a choice: Order 4 Rule 16 can be used.”
21. 	I also find that there is merit in the argument advanced by the first defendant that the plaintiff lacks standing to sue in this matter, if only for the reason that in terms of Section 44 of the Wills, Probate and Administration Act, until probate or administration is granted, the property of the deceased person vests in the Public Curator and only the Public Curator, or someone with authority could commence correct proceedings.
22. 	In all the circumstances of this case for one or all of the aforesaid reasons, the plaintiff’s proceedings are manifestly an abuse of Court process and are liable to be dismissed in their entirety, as I hereby do.
23. 	Having regard to my conclusion herein the orders of this Court granted on the 11th October, 2018, meant to preserve the status quo pending delivery of this judgment are hereby discharged. 
24. 	On the matter of costs, costs generally follow the event. In this case, the plaintiff has persisted in an unmeritorious application causing the first defendant substantial prejudice, unnecessarily. The plaintiff must therefore pay costs at Solicitor – Client Scale.
25. 	In the result, it is ordered as:
25.1	Pursuant to Order 12 Rule 1 and Order 12 Rule 40 (1) (a), (b), and (c) of the National Court Rules and Section 155 (4) of the Constitution, the proceedings be dismissed generally for disclosing no reasonable cause of action, being frivolous and vexatious and an abuse of process.
25.2	The plaintiff to pay the first defendant’s costs of the application and the proceedings on a solicitor client basis.
_______ ____________________________________________________
Jerewai Lawyers: Lawyers for the Plaintiff   
Ashurst:		Lawyers for the First Defendants 
Solicitor-General: Lawyers for the Fourth Defendant