Rawali v Kob [2021] PGNC 145; N8881 (18 June 2021)

N8881

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 13 OF 2020 (IECMS)

BETWEEN:
JENNY RAWALI
Appellant

AND:
CEDRIC BASA KOB
First Respondent

AND:
NATIONAL HOUSING CORPORATION
Second Respondent

Waigani: Miviri J
2021: 03^rd June

PRACTICE & PROCEDURE – Judicial Review & appeals – Appeal – Summary Ejectment proceedings District Court – Motion to dismiss – Order 4 Rule 36 NCR Want of Prosecution – Order 12 Rule 40 Frivolous & Vexatious – Material Relied sufficient – Fruits of Judgment delayed Unnecessarily – Procrastination – Balance discharged – Appeal dismissed – cost in the cause.

Cases Cited:

Pruaitch v Manek [2019] PGSC 123; SC1884

Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906

Josiah v Raphael [2018] PGSC 8; SC1665

Takori v Yagari [2007] PGSC 48; SC905
Counsel:

B. Lomai, for Appellant

M. Wenge, for Respondent

RULING

18^th June, 2021

1. MIVIRI, J: This is the ruling on the respondents Notice of motion of the 13^th May 2021 seeking dismissal of the appeal on the basis of Order 4 Rule 36 (1) and Order 12 Rule 40 (1) (a) & (b) of the National Court Rules.
   
2. Basically, he contends that the proceedings should be dismissed for want of prosecution, that there has no due despatch and diligence in the prosecution of the appeal. Further that no reasonable cause of action is disclosed. It is a frivolous and vexatious action as such should be dismissed. And he seeks costs of the proceedings to be paid by the Appellant and any other orders as directed by the Court.
   
3. In support of his application, he relies on the affidavit that he has deposed sworn of the 29^th April 2021, filed the 13^th May 2021. He deposes that he is the first respondent to the proceedings. And is also the registered proprietor of the land described as State Lease, Allotment 15 Section 323, Hohola, NCD (Property). Annexure “A” is true Owners copy of that State Lease that he holds. He was the complainant in the summary ejectment proceedings DC No. 841 of 2017 and attaches as annexure “B” the ruling of that Court in that matter. And the ruling led to orders that vacant possession of the property should be given by the appellant within 30 days from the date of that decision. The appellant filed this appeal on the 23^rd December 2020 which was a day before the expiry of that 30-day period before she gave up possession as ordered.
   
4. The First Respondent informed his current lawyers who attended directions on the 08^th and the 15^th February 2021. And that is annexure “C” as true copy of the Court endorsement. The appellant had informed there that she wanted more time to obtain a copy of the court file in the District Court to prepare the appeal book. Since that date up to the present four months going into the fifth has lapsed, without that appeal book filed and served. Effectively I have been denied my enjoyment of the property without the appeal being progressed with due dispatch and diligence. I had filed the district Court proceedings for ejectment since 22^nd November 2017. It was delayed when the appellant filed a judicial review proceeding OS (JR) 261 of 2018. An application was made in the District Court staying since the 27^th July 2018 when that was filed. That is annexure “D” to the affidavit of the applicant.
   
5. The appellant has taken no active steps in prosecuting the appeal until followed up by my lawyers which forced it to be listed for the leave application on the 28^th November 2019. And Justice Thompson heard the leave application on the 28^th November 2019 and refused it. Annexure “E” is a true copy of the court order there.
   
6. The appellant contended that title was bona fide in dispute and that it was with the National Housing Corporation and not the first respondent. No material was filed to move this further from where it was from the bar table. Despite Counsel submitting that and urging that it was a very serious matter, and there was fraud in it. This submission would have held more to his cause if it were supported by material, independently to assert that fact or facts. It was a bare submission without evidentiary basis to advance any further. And it did not help against the evidence that the first respondent placed before the court. Importantly the title that was attached as annexure “A” as true Owners copy of that State Lease that bore entry number S79258 to Cedric Basa Kob, self-employed of Vision City produced 17/10/2017 at 9.10am entered 20/10/2017 signed by the Deputy Registrar.
   
7. If it were false and fraudulent, it was supported by the District Court ruling delivered as Case No. 841 of 2017 Cedric Basa Kob v Jenny Rawali & National Housing Corporation on the 24^th November 2020. Specifically, the court there remarked at page 3 of the ruling, “Merely raising allegations of fraud, impropriety and unfairness and breaches of agreements as a defence in the District Court, without seriously taking formal legal steps to progress these allegations, is in my view insufficient as a defence, so as to deny a registered proprietor of a State Lease his right to peaceful possession of his lawfully recognized property.
   
8. The critical factor here is that the defendants actually initiated proceedings at the National Court in OS (JR) No. 261 of 2018 in which the National Court made the following orders. The Court ordered that; (1) The plaintiff’s application for Leave for Judicial Review is refused. (2) Plaintiff is to pay cost of the third and Fourth defendants.
   
9. The defendants have not appealed the above National Court Order to the Supreme Court. There is nothing stopping this District Court from granting the eviction orders sought. Therefore, the court grants the following orders.
   
10. Court Order (1) Under section 6 of (1) and (2) of the Summary Ejectment Act the defendant, and any other persons currently in occupation of the property known as section 323 allotment 15 Gerehu stage 6 National Capital District are ordered to give vacant possession of the property to the complainant within 30 days from the date of this Order. (2) That failure to comply with the above order within 30 days, from the date of these orders will automatically attract issuing of a warrant of ejectment, directing members of the Police Force to forcefully affect the above orders. (3) That parties are to bear their own costs. Signed by the court at Port Moresby this 24^th Day of November 2020.”
    
11. This ruling is supported by this decision of this court in the orders attached to the affidavit of the applicant as annexure “D” dismissing leave application for judicial review. In my view it is analogous to the observation authoritatively made by the Supreme Court in Pruaitch v Manek [2019] PGSC 123; SC1884 (6 December 2019) that “ piecemeal interlocutory applications to National Court and multiple appeals to Supreme Court can constitute abuse of process. Circumstances which give rise to abuse of process are varied and not limited to fixed categories – Court must take into account circumstances of case, prejudice to each of the parties and need for public confidence in administration of justice – Delay in conduct of proceedings and failure to take available procedural steps are factors capable of constituting abuse of process.”
    
12. In my view that is the case here by the facts and circumstances that have arisen here. Judgement is in favour of the applicant/first respondent borne out by the District Court with its ruling as set out above. It is confirmed by the dismissal of the Leave application for judicial review that has been set out above. And the action now is clearly tantamount to what is described by the Supreme Court set out above in Pruaitch (supra). No material has been filed by the Plaintiff on the eve of the application after direction orders. It means for all intent and purpose she is not seriously taking a lead to prosecuting what she has placed on the record of the court. She is running a case with no end to it given its history and what has transpired leading up as set out above. It would be in the same view as observed in Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 (28 March 2008). It is an abuse of process seeking what has already been attained in other proceedings. The label maybe different but the substance is still the same. That by this authority is res judicata and has no continued place in the records of the court and must be dismissed as an abuse of process.
    
13. And this view settles in well with the application pleaded here on the basis of Order 4 Rule 36 Want of Prosecution is in order by the facts set out above when weighed against the bare assertions of the appellant. That rule states that, “(1) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may stay or dismiss the proceedings. (2).......”
    
14. Put another way from the Latin maxim “aequitas sequitur legem”, which meaning has invariably been given adages such as "equity will not allow a remedy that is contrary to law” or “equity had come not to destroy the law, but to fulfil it” or “equity has no clash with law neither it overrides the provisions of law, nor it is the enemy of law. It adopts and follows the basic rules of law,” “Josiah v Raphael [2018] PGSC 8; SC1665 (30 April 2018). Is it therefore equitable to maintain the proceedings here? Clearly that is not the case as set out by the discussions above. It would be against law to maintain equity here.
    
15. There is abuse of process pursuant to Order 4 Rule 36 (1) and Order 12 Rule 40 (1) (a) & (b) of the National Court Rules made out and discharged on the balance against the plaintiff by the first defendant. There is no due despatch and prosecution of the matter and it is a frivolous and vexatious claim that must be dismissed with costs. The frivolity of the matter is set out in the facts discussed above that it is not attenable because she has no title to the subject property. She is maintaining an action that is harassing preventing the first defendant from enjoying that process. She has not produced the material to substantiate is in no position to advance her cause any higher. Hence the application is in order considered in the light of Takori v Yagari [2007] PGSC 48; SC905 (28 February 2007), that all relevant material for and against have been considered giving the ultimate, which is the dismissal of the proceedings as apparent above.
    
16. Accordingly, the application by the First Respondent by his Notice of motion of the 13^th May 2021 is upheld as applied the appeal is dismissed by Order 4 Rule 36 (1) and Order 12 Rule 40 (1) (a) & (b) of the National Court Rules with costs. The decision at first instance is confirmed with the orders emanating to be executed forthwith upon service of this Judgement.
    
17. The orders of the Court are:
    
    • (i) The appeal is dismissed.
    • (ii) The decision and orders at first instance are affirmed in total.
    • (iii) The first Defendant is granted liberty to execute the decision and orders at first instance upon service of this Judgement and orders on the appellant forthwith.
    • (iv) The cost of the proceedings follows the event if not agreed to be taxed.

Orders Accordingly.

__________________________________________________________________

Lomai & Lomai Attorneys: Lawyer for the Appellant

Luthers Lawyers: Lawyer for the Respondent