N8471
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 550 OF 2019

LADY MARGARET YUWI
Plaintiff

V
JACOB POPUNA, as Public Curator & Official Trustee of Papua New Guinea
First Defendant

And
PUBLIC CURATOR OF PAPUA NEW GUINEA
Second Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2020 : 02nd July

PRACTISE & PROCEEDURE – Judicial Review & appeals – Notice of Motion – Dismissal of Proceedings – Section 155 (4) Constitution – Order 12 rule 40 (1) NCR – Multiple Proceedings – Same Parties – Deceased Intestate Property – Same matter on merit – Abuse of process – Frivolous & Vexatious – Evidence of – Balance discharged – motion granted – cost on indemnity basis against Plaintiff & Lawyer.

Cases Cited:

Kerry Lerro trading as Hulu Hara Investments limited v Philip Stagg, Valentine Kambori and the Independent state of Papua New Guinea, in Takori v Yagari [2007] PGSC 48; SC 905 
Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906
Opi v Telikom PNG Limited [2020] PGNC 168; N8290 

Counsel:

J. Apo, for Plaintiff
F. Aki, for First & Second Defendants
					RULING 
 03rd September, 2020

1.	MIVIRI, J: This is the Ruling of the Court on the notice of motion of the first and second defendants seeking dismissal of the entire proceedings filed by the plaintiff pursuant to section 155 (4) of the Constitution and Order 12 Rule 40 (1) (c) of the National Court Rules, “the Rules” for being an abuse of court process. And that it is frivolous and vexatious pursuant to Order 12 Rule 40 (1) (b) also of the Rules. And costs on indemnity basis including any further orders deemed appropriate by the court.

2.	Section 155 (4) of the Constitution is the inherent power of this Court from which orders in the nature of prerogative writs and such other orders as necessary to do Justice can be made as here. The applicants have properly invoked it, including Order 12 rule 40 which is in the following terms:

 “Frivolity, etc (1) Where in any proceedings generally or in relation to any claim for relief in the proceedings-

(a)	no reasonable cause of action is disclosed; or
(b)	the proceedings are frivolous or vexatious; or
(c)	the proceedings are an abuse in the process of the Court,
(d)	the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
(2)	The court may receive evidence on the hearing or an application for an order under sub-rule (1).”

3.	In reliance they have filed the affidavit of Jacob Popuna Public Curator and Official Trustee dated the 18th December 2019 who swears and says on oath confirming his title and authority. That he is the deceased administrator for the subject deceased Estate. That on the 24th November 2017 the National Court comprised by the Deputy Chief Justice Kandakasi granted him lawfully the Deceased Administrator of the Intestate Estate of Late Sir Matiabe Yuwi in the court proceedings styled WPA 3 of 2017 order of which is annexure “A” of his affidavit. 

4.	This evidence is confirmed by annexure “B” of the affidavit in rebuttal by the Plaintiff Lady Margaret Yuwi dated the 5th December 2019. It points that primarily at the heart is allotment 6 section 3 Hohola Port Moresby property of late Sir Matiabe Yuwi former Member of Parliament. The entry on that Special lease under section 40 on the flip numbered 32162 denotes, “Transfer to Sir Matiabe Yuwi of Mendi Businessman. Produced 21/08/2003 at 9.14am entered 22/08/2003.” It is extracted from Volume 10 Folio 2294 reinforced by issue of the official copy of the State Lease lost or destroyed evidenced in the National Gazette No G289 dated Friday 12th April 2019 annexure “J” of the affidavit of Lady Margaret Yuwi set out above.

5.	This is clear undisputed evidence by both sides to the dispute that the subject property is of late Sir Matiabe Yuwi and not of Lady Margaret Yuwi as she contends, nor does it belong to the son Peter Yuwi. But because both are immediate family to the deceased, they have some interest in the way that the property is disposed which is not to say one has overriding authority over the one or the other in its disposal. Because no evidence has been placed to show that the property is primarily of one or the other. Nor has there been evidence that Lady Margaret Yuwi has solely purchased that property making her say over it overriding the son. But it is clear that both are subject to the discretion of the administrator of the Intestate Estate of Late Sir Matiabe Yuwi by the order of the National court in proceedings styled WPA 3 of 2017 presided by the Deputy Chief Justice Kandakasi of the 24th November 2017 confirmed further on the 15th December 2017. 

6.	Which is set out by both the plaintiff and the defendant/applicants as, “1. The Public Curator is the Administrator of the Intestate Estate of Late Sir Matiabe Yuwi. 2. The letters of Administration application filed on 08th February 2017 by the Public Curator be amended to include further verification and disclosure of the Deceased Estate Inventory. 3. All beneficiaries are required to comply with term 2 of these orders by disclosing the deceased assets, interests and or properties both real and personal that are currently under their custody to the Public Curator for purposes of realization and subsequent deceased Estate Administration. 4. Beneficiaries failing to comply with the foregoing orders will result in the Public Curator declining trust pursuant to section 8 (1) of the Public Curators Act 1951.

7.	Emanating from this the Public Curator on the 31st July 2018 made an administrative decision to sell section 3 Allotment 6 Hohola National Capital District at current Market Value and proceeds to be equally distributed amongst the Plaintiff and Peter Yuwi. This was challenged by the Plaintiff Lady Margaret Yuwi in WS 1258 of 2018 all parties were the same except for the son Peter Yuwi who was first defendant then. She sought orders pursuant to section 35D of the Wills Probate & Administration Act pleading custom seeking based to have the property transferred solely to herself. Annexure “D” of the affidavit of Jacob Popuna is a copy of that writ. And annexure “E” is a notice of motion seeking restraining orders against the defendants in that proceedings on the 15th October 2018. That was dismissed because she failed to comply with the Chamber orders of the National Court presided by Justice Dingake as to service of the urgent application documents which is annexure “F”.

8.	Which did not end the plaintiff as on the 31st October 2018 she filed another proceeding WS 1364 of 2018-CC1. All parties there with the pleadings were the same as in WS 1258 of 2018 annexure “G”. She also filed an urgent application seeking restraint which was heard on the 25th October 2018 Annexure “H”. That was dismissed, annexure “I” on the 08th November 2018 on the basis that the entire proceedings WS 1354 of 2018-CC1 was an abuse of the court process as the initial proceedings WS 1258 of 2018 was still on foot. From which on the 09th November 2018 annexure “J” , the plaintiff filed an application SCA 177 of 2018 seeking leave to appeal. This went before the Chief Justice Sir Gibbs Salika, annexure “K” and he tasked the defendants Public Curator to find out the position of all the rest of the beneficiaries should they have an interest in the subject property. Which was done with affidavits obtained of all by the defendants and were all filed in court. Essentially all agreed to sell the subject property and to share the proceeds with the plaintiff and the eldest son Peter Yuwi. 

9.	As a consequence, annexure “L” the plaintiff withdrew the application for leave to appeal on the 08th March 2019. And filed motion applying to restrain the defendants from selling the subject property. But annexure “M” on the 14th March 2019 that application for the second time came before Justice Dingake who dismissed it again as being an abuse of court process. And made orders for costs personally against the lawyer Mr. James Apo. Further annexure “N” on the 15th May 2019 Plaintiff went back to WPA 3 of 2017 filed a motion there seeking yet again to restrain the defendants which was not moved.

10.	And in the light of this she now moves this proceedings OS (JR) 550 of 2019 seeking under section 35D of the Wills Probate & Administration Act with the initial WS 1258 of 2018 still pending not determined. Her affidavit of the 5th December 2019 does not have any evidence in rebuttal against what is set out above of the defendants. Except for the caveat lodged by her of the 15th November 2019 it is dependent on the present proceedings OS (JR) 550 of 2019. Its continued survival is dependent on this present proceedings’ outcome.

11.	The issue for determination illuminated by these facts is, is there cause established on the balance of probabilities for an abuse of proceedings?

12.	The applicant defendants argue that there is cause established and discharged on the required balance because the action at law is not anew it is a repeat of the same action that has already seen the light of day in court because the motion for dismissal pursuant to section 35D of the Wills Probate & Administration Act has been determined. It has been dismissed particulars alluded in the evidence set out above. Even then it amounts to an abuse to bring the action in the present form when it is pending determination in WS 1258 of 2018.  Reliance is placed upon Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 (28 March 2008) particularly the concept of res judicata. It has been determined by a court of competent jurisdiction on its own merits. And the same is pursued and repeated.

13.	The other side of the balance is that dismissal of the entire proceedings denotes denying the litigant from the judgement seat. After all the hand of Justice is sought by Lady Margaret Yuwi here like any other person. And it must be by very clear evidence that the motion sought is made out. Because the court will be slow to accord. Notably the Supreme Court in Kerry Lerro trading as Hulu Hara Investments limited v Philip Stagg, Valentine Kambori and the Independent state of Papua New Guinea, in Takori v Yagari [2007] PGSC 48; SC 905 (28th February 2007), states:

“our Judicial system should never permit a plaintiff or a defendant to be driven from the Judgement seat in a summary way, without a Court having considered his right to be heard. A party has a right to have his case heard as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the court. That right cannot be lightly set aside.”

 The application here must be carefully scrutinized with the evidence.

14.	It is accepted by both sides that the Plaintiff has instituted proceedings OS (JR) 550 of 2019. Parties are Lady Margaret Yuwi as plaintiff against Jacob Popuna as the Public Curator and Official Trustee as first defendant, Public Curator as second defendant and the State as third. The order emanating annexure “A” of the affidavit of Lady Margaret Yuwi reads:

“(1) The plaintiff is given leave to proceed by way of Judicial Review against the Defendants decision of 31 July 2019 for distribution of the Property; (2) The plaintiff is to serve all documents including this order and the substantive motion on all interested parties as soon as practicable; (3) The matter will return to Court on Monday 10th February 2020 at 9.30am for directions; (4) The plaintiff is at liberty to apply before then for stay or injunctions; (5) Costs be in the cause. It is ordered 28th November 2019 and entered 4th December 2019”

15.	This is clear evidence of this matter going the process initially for Judicial review. And leave has been granted starting that process in favour of the Plaintiff now. It means the substantive notice of motion is now to be prepared, filed, served and heard. There is no evidence that this is so at this juncture of the proceedings. But Annexure “D1”of the affidavit of Lady Margaret Yuwi further depicts a Court Order of this court presided by Justice Kandakasi (as he then was). It is dated the 24th November 2017 and entered 04th December 2017 and is document number 23 in that proceeding titled WPA (CC2) No 03 of 2017 In the matter of Wills Probates and Administration Act Ch 291 In the Estate of Sir Matiabe Yuwi, Late of Hohola, National Capital District, Papua New Guinea, former member of Parliament deceased, intestate.

16.	Effectively the evidence depicts that WPA (CC2) 03 of 2017 In the matter of Wills Probates and Administration Act Ch 291 In the Estate of Sir Matiabe Yuwi, Late of Hohola, National Capital District Papua New Guinea, former member of Parliament deceased, intestate filed upon which a motion is pending to restrain the defendants has not being moved. The second proceedings this current proceedings OS (JR) 550 of 2019 Parties are Lady Margaret Yuwi as plaintiff against Jacob Popuna as the Public Curator and Official Trustee as first defendant, Public Curator as second defendant and the State as third has orders set out above made already. They both in essence and materially relate to the same subject deceased property section 3 Allotment 6 Hohola National Capital District of Sir Matiabe Yuwi and poses the same issues pursuant to section 35D of the Wills Probate & Administration Act same  matter emanating from the same parties on either side. The plaintiff has not discontinued one and maintained the other. Both are in the same civil Jurisdiction of the National Court but in two different tracks of the court, one in CC2 and the other in judicial review track.

17.	Both orders of the court clash against each other the first orders, WPA (CC2) 03 of 2017 gives the Public Curator the authority to be the administrator in the Intestate Estate of Late Sir Matiabe Yuwi. Whereas OS (JR) 550 of 2019 grants leave to review the decision of the Public Curator of the 31st July 2019 for distribution of the Property. It is not an appeal courts decision. Further Order number three grants liberty to apply for a stay or injunctions. If given effect to would clash against the Orders in WPA (CC2) 03 of 2017 where the intent is to lawfully distribute all properties of the deceased between surviving relatives. Especially where a dispute has arisen between the plaintiff and the son Peter Yuwi in the distribution of the property at section 3 Allotment 6 Hohola National Capital District. The effect is that justice is not attained between the parties. What has happened has amounted to a serious abuse of process of the court by the plaintiff. And this is evident from all the material upon which the defendant applicants have relied on set out above. Further the light from Telikom PNG Limited v Independent Consumer & Competitions Commission & Digicel (PNG) Limited (supra) meets the facts of the case square and leaves no room but that the plaintiff has committed abuse of process in the institution of this process with that of the WPA (CC2) 03 of 2017 still open and pending. 

18.	Accordingly, the defendant applicants have sustained in discharging the balance beyond the balance of probabilities that an abuse of process has occurred. There is no serious purpose or value in the maintenance of OS (JR) 550 of 2019. In plain it is frivolous and vexatious and must be dismissed in its entirety. What it has done is simply to cause annoyance frustration or worry for the defendants without merit. It is therefore dismissed with Costs. And which will be on indemnity basis against the Plaintiff and her lawyer given all the reasons set out above. It is clear prudence or justice is not at heart in the multiple proceedings that have been filed. Rather unnecessary costs, time, torment, anguish and frustration on the defendants in the maintenance of the defence of the actions that have been filed. Including time and money upon this court considering the backlog it is faced with.

19.	Lawyers are officers of the court first and foremost and must assist the court to serve justice. Professionalism means high professional sense of duty and ethics at the highest. And this cannot be said of the conduct of the lawyer depicted out by the evidence set out above. It is self-serving and needs no second thoughts to the contrary. This is not the first time that Plaintiff’s lawyer has had to pay the cost personally. He was ordered and named personally as Lawyer for the plaintiff to pay the costs personally on the 14th March 2019 by this Court presided by Justice Dingake after dismissal of WS 1364 of 2018 (CC1) where parties were the same as the present. No doubt the liability in the costs were a direct attribute of his actions  as a lawyer to so entail. It must be stopped hence this order personally against James Apo as lawyer for the plaintiff to pay the costs personally of the dismissal on an indemnity basis. 

20.	It is a message to all who have similar inclinations as evidenced here. It is awarded where conduct of party or lawyer is so improper, unreasonable or blameworthy that punishment is warranted: Opi v Telikom PNG Limited [2020] PGNC 168; N8290 (29 April 2020). Here there is no sense of respect for the deceased Sir Matiabe Yuwi who is a leader who gave time to build this nation. Nor the same for any other deceased persons. What has happened here is not to suppress a lawyer from serving his client to the best and of discharging his duty without fear or favour but to ensure that the wheels of justice run without abuse. For the present, referral will not be made to the Lawyers Statutory Committee of the conduct of the lawyer.

21.	The caveat lodged upon Volume 10 Folio 2294 allotment 6 section 3 Hohola Port Moresby by the plaintiff of the 15th November 2019 is dependent on the OS (JR) 550 of 2019 and by this judgment, the Registrar will upon receipt of a copy of the orders remove the caveat from the records set out above forthwith. 

22.	The orders of the court are:

(1)	The motion is granted to the applicant/defendants.
(2)	The proceeding is an abuse of court process.
(3)	Accordingly, it is dismissed in its entirety forthwith.
(4)	Costs are on indemnity basis to be paid by the Plaintiff and her lawyer Mr. James Apo personally occasioned by this dismissal.
Orders Accordingly.
__________________________________________________________________
Apo & Co Lawyers                : Lawyer for the Plaintiff Applicant		
Office of the Public Curator  : Lawyer for the Defendant