N9614
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 33 OF 2008

BETWEEN:
NATIONAL AIRPORTS CORPORATION LIMITED
Plaintiff

AND:
ELIAP TOKANA
First Defendant

AND:
LUTHER SIPISON in his capacity as the
Secretary of Department of Land & Physical Planning
Second Defendant

AND:
MICHAEL GIDEON in his capacity as the
Director of National Mapping Bureau
Third Defendant

Waigani:  Dingake J
2022: 21st February & 8th March, 13th May

PRACTICE AND PROCEDURE – Proceedings commenced by way of Originating Summons – filing of a Defence or Cross-Claim without leave of Court impermissible – such amounts to abuse of Court process.

Cases Cited:

Wendy Waila Magini v Mondo Daimo [2021] PGNC 474; N9228
William Duma v Eric Meier [2007] PGSC 34; SC898
Chief Collector of Taxes v TA Field Pty Ltd [1975] PNGLR 144
Pastor Geyamgoling Saki and Busu High School v Kadir Contractors Ltd (1999) SC599
Alfred Alan Daniel v Pak Domoi Ltd (2009) SC970
Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112
Curtain Bros (Qld) Pty Ltd v Kinhill Dramer Pty Ltd & The State [1993] PNGLR 285
Kumul Builders Pty Ltd v Post Telecommunication Corporation [1991] PNGLR 299
Severinus Ampaoi v. James Tauriko & 1 or [2012] PGSC 3; SC1166 (1 March, 2012)
Gaspar Nakua v Moses Gabuogi [2012] PGNC 144; N4883
Mainland Holdings Ltd v Paul Robert Stobbs (2003) N2522
National Council of Young Men’s Christian Association of Papua New Guinea (Inc) v Firms Services Pty Ltd [2010] PGNC 22.

Counsel:

Mr. Noel Ako, for the Plaintiff
Mr. John Napu, for the Defendants

13th May, 2022
1.	DINGAKE J:	This is an application in which the Plaintiff, on the main, prays the Court to strike down the First Defendant’s Amended Defence and Cross-Claim filed on the 27th June, 2008, as disclosing no reasonable defence and/or cause of action, for being frivolous or vexatious and abuse of process, and further that summary judgment be entered in favour of the Plaintiff in terms of the declaratory reliefs and orders in the Amended Originating Summons filed on the 26th October, 2016.

2.	The Plaintiff also prays that the interim orders made on the 31st January, 2022 be set aside.

3.	The reliefs are being sought pursuant to Order 8 Rule 27 (1) (a), (b) and (c); Order 12 Rule 40 (a), (b) and (c); Order 38 (1) (a) and (b); Order 12 Rules 8 (5) of the National Court Rules respectively.

4.	The application is opposed by the First Defendant.

5.	At the heart of this litigation is a piece of land known as Portion 2437, subject land, Port Moresby, National Capital District, the site of Jacksons International Airport – a very strategic and important national facility, that the Plaintiff avers it owns.

6.	Upon being served with the aforesaid Originating Summons, the First Defendant, on the 27th of June 2008, filed a Defence and a Cross-Claim. In the Cross-Claim the First Defendant claimed that part of the subject land is customary land that he or his clan own.  He also claimed, among other things, compensation for loss of use and enjoyment of that part of the land he claims belongs to him or his clan.

7.	In its Amended Originating Summons filed on the 26th of October, 2016, the Plaintiff claimed, inter alia, an Order restraining the First Defendant, his servants, agents, associates and clansmen, from selling parts of the land at Jacksons Airport known as Portion 2437, (now Portion 2965) Port Moresby, National Capital District.

8.	The Plaintiff also sought a declaration that the aforesaid subject land is State land under the Plaintiff. 

9.	At the hearing of this matter, the Plaintiff took issue with the First Defendant representing the Idibana ILG and argued that the First Defendant does not have authority from the Dubara Idibana ILG to make a claim on the subject land, as an individual.

10.	It seems to me that this proceedings (OS(JR) No. 33 of 2008, were instituted against the First Defendant, not in any representative capacity. The Dubara Idibana ILG or Dubara Clan of Koiari Tribe is not as party and the First Defendant cannot purport to represent a party that is not before the Court, or a group of people that have not mandated him to do so.

11.	I will therefore proceed on the basis that these proceedings are against the First Defendant, in his personal capacity, as indeed is the case, having regard to the Originating Summons issued against him.

12.	Before I deal with the question as to ownership of Portion 2437, mentioned above, it is convenient to deal with the propriety of filing a Defence and Cross-Claim by the First Defendant, which the Plaintiff argues is irregular or incompetent.

13.	It is common cause that upon being served with Court process in this matter the First Defendant filed an Amended Defence and Cross-Claim on the 27th of June, 2008.
14.	The Plaintiff contends that the said Amended Defence and Cross-Claim, offend the rules, as it is not permissible to respond to an Originating Summons by entering a Defence. The Plaintiff also contends that filing a Cross-Claim was not authorized by Court and therefore incompetent.

15.	This Court agrees with the submissions of the Plaintiff. It offends against the rules of this Court to respond to Originating Summons in a manner the First Defendant has done. (See Order 4 Rule 31 and 35 and Order 4 Rule 34 of the National Court Rules); and Wendy Waila Magini v Mondo Daimo (2021) PGNC 474 N9228.

16.	The Supreme Court stated the above position in the clearest of terms in the case of William Duma v Eric Meir (2007) PGSC 34 SC898 at paragraph 12 when it stated that:
“12.	There is no requirement for defence to be filed in proceedings commenced by Originating Summons unless directed or ordered by the Court. The Court may for purposes of “just, quick and cheap” disposal of proceedings direct that issues be defined by pleading or order that proceedings continue on pleadings by filing statement of claim or other pleadings (see Order 4, Rules 31 & 35 of the National Court Rules). Unless directed or ordered by the Court, there are no pleadings in proceedings commenced by way of Originating Summons.”
17.	It follows in my view, that the Defence and Cross-Claim, by the First Defendant, are invalid for offending the rules of this Court.

18.	In my considered view in filing an invalid process, namely, the Defence and Cross-Claim in the manner he did, the First Defendant engaged in conduct that has a tendency to prejudice the Plaintiff or cause undue delay in this proceedings and or engaged in conduct that is otherwise an abuse of Court as envisaged by Order 8 Rule 27 (1) (a), (b) and (c) of the National Court Rules. 

19.	I turn now to consider the Plaintiff’s claim that it owns the subject land based on the eight (8) Affidavits it filed. 

20.	The First Defendant has not filed any answering Affidavits in opposition to the relief sought by the Plaintiff. The net effect of this failure by the First Defendant is that the averments of the Plaintiff stand uncontradicted and must be accepted as the truth, as I hereby do.
21.	The evidence tendered by the Plaintiff establishes that the subject land was declared Aerodrome Land on the 2nd of June, 1980, by way of Ministerial declaration published in the National Gazette No. 951 of 1980.

22.	The aforesaid declaration was subsequently revoked, and a new declaration made that included portions of land that were not included in the previous declaration. In consequence thereof, portions 2437 and Portion 1229 have been consolidated into Portion 2965.

23.	The boundaries of Portion 2965 appear on the Survey Cat No. 49/3015 (Annexure “E” of Mr. Kipongi’s supporting Affidavit filed on the 17th of February 2022, Doc No. 140).

24.	On the evidence before me, there is no credible dispute as to whether the Plaintiff owns the subject land. The evidence tendered by the Plaintiff is unassailable. Having regard to my earlier comments that no valid response to the Plaintiff’s claim has been filed, there is no bonafide defence on record.
 
25.	Having regard to the above, the next question to consider is whether summary judgment in favour of the Plaintiff, in terms of the Originating Summons should issue?

26.	It is trite learning that summary judgment in proceedings commenced by way of Originating Summons is competent. 

27.	In the case of Duma Meir, cited above, at paragraph 13, the Court stated the position as follows:
“13.	We agree with both counsels that there is no prohibition on an application for summary judgment in proceedings commenced by way of Originating Summons (see Division 4 of Order 12 of the National Court Rules). In this case the application for summary judgment was properly before the Court.”
28.	It is trite learning that summary judgment is an extra-ordinary remedy that shuts the door in final fashion against the other party, in this case, the First Defendant, and should only be granted in the clearest of cases. (Chief Collector of Taxes v TA Field Pty Ltd (1975) PNGLR 144; Pastor Geyamgoling Saki and Busu High School v Kadir Contractors Ltd (1999) SC599; Alfred Alan Daniel v Pak Domoi Ltd (2009) SC970).
29.	In my mind, this is one such clear case. On the evidence before me the Plaintiff’s claim of ownership of the subject land is clear and unimpeachable and there is no opposition to same on record.

30.	The leading Supreme Court cases that have settled the law in relation to summary judgment include Bruce Tsang v Credit Corporation (PNG) Ltd (1993) PNGLR 112 and Curtain Bros (Qld) Pty Ltd v Kinhill Dramer Pty Ltd & The State (1993) PNGLR 285;

31.	The above authorities require an application relying on Order 12 Rule 38 to satisfy the Court that:
i)	There is evidence of the facts proving the essential elements of the claim; and 
ii)	There is evidence from the Plaintiff or some other responsible person that in his belief there is no defence.
32.	On the evidence before me I am satisfied that there is no triable issue of fact and no defence based on law at all (Kumul Builders Pty Ltd v Post Telecommunication Corporation (1991) PNGLR 2999. 

33.	In this case, further justification to grant summary judgment in favour of the Plaintiff is made even more compelling by the Affidavit of the First Defendant, (Doc No. 60) filed of record, that clearly admits that the subject land, Plot 2437, is owned by the Plaintiff. 

34.	At paragraph 4 (i) of his Affidavit (Doc No. 60), the First Defendant states that:
“i.	The National Airports Corporation is owner of Portion 2347 now relinquished (surrender) and known as Portion 2965 in Survey Map identified as Cat. No. 49/3015.”
35.	The First Defendant’s admissions on the ownership of the subject land are strong, clear, and unambiguous and makes the Plaintiff’s case unanswerable, or its success in this matter a foregone conclusion.

36.	Mr. Napu, learned Counsel for the First Defendant, sought to suggest that it would not be proper to have regard to this evidence. In my considered view, Order 9 Rule 30 of National Court Rules, seems to authorize admissions similar to the one made by the First Defendant in his Affidavit sworn on the 30th September, 2014 (Doc No. 60). 
37.	I am fortified in the view, I hold by the remarks of the Supreme Court in the case of Severinus Ampaoi v. James Tauriko & 1 or [2012] PG SC 3; SC 1166 (1March, 2012) at paragraph 68 when the Court stated that:
“68.	According to Sub-rule 1 of Rule 30, there are two situations by which judgments by admissions may be entered against an opposite party.  The first situation is where admissions are made in pleadings of a party, for example, a defendant makes an admission in its defence to owing a sum of money to the plaintiff.  The second situation is where admissions are made in other circumstances by virtue of the expression “otherwise”.  In our view, the expression “otherwise” would cover situations where admissions are made in a party’s witness’s affidavit, answers to interrogatories etc,: see Alfred Alan Daniel’s case (supra), John Kul -v- The State (2010) N3898 and TNA Limited -v- Paul Kua & Kongo Coffee Limited (2011) N4225.”
38.	In any event, even if I may be wrong to rely on the above Affidavit (Doc No. 60), the evidence of the Plaintiff considered as a whole makes a compelling case for the grant of summary judgment against the First Defendant as prayed.

39.	The last question I wish to address is whether this Court must discharge interim orders made on the 31st of January, 2022, as they serve no utility, and also given my findings that the Plaintiff has made out a case for summary judgment.

40.	The position of the law is that an interim order that is unnecessary or there is no good reason to sustain it is liable to be discharged (Gaspar Nakua v Moses Gabuogi (2012) PGNC 144; N4883 and Mainland Holdings Ltd v Paul Robert Stobbs (2003) N2522; National Council of Young Men’s Christian Association of Papua New Guinea (Inc) v Firms Services Pty Ltd (2010) PGNC 22).

41.	I have read the further Affidavit in support of the discharge or setting aside of the aforesaid Orders by Romata Geno, the Company Secretary of the Plaintiff. His averments have not been contradicted by the First Defendant.

42.	Essentially, Mr. Geno avers that there is no eminent threat of any evictions and there is no reason to maintain the interim orders. Furthermore, Mr. Geno avers that the Plaintiff position is that any eviction exercise has been held in abeyance to give ample time to settlers and people who are currently occupying land to move out.

43.	In law an interim order cannot exist in perpetuity. In this case, I am persuaded for the reasons canvassed by Mr. Geno in his Affidavit above, that there is no reason to sustain the Interim Orders of 31st January, 2022.

44.	Significantly, interim orders usually subsist during the pendency of a suit or proceedings, whilst awaiting the substantial determination of the rights of the parties, which I have now determined in favour of the Plaintiff, and logically there is no utility in maintaining the interim orders.

45.	In this case, since the continuation of the interim order has become unnecessary or inappropriate, same is liable to be discharged, which I shall do in due course.

46.	In the result, this Court orders that:
(a)	Pursuant to Order 8 Rules 27 (1), (a), (b) and (c) and Order 12 Rule 40 (a), (b) and (c) of the National Court Rules, the First Defendant’s Amended Defence and Cross-Claim filed on the 27th June, 2008 be struck out for being frivolous or vexatious and abuse of process.
(b)	Pursuant to paragraph 1 of this Notice of Motion and Order 12 Rules 38 (1) (a) and (b) of the National Court Rules, Summary Judgment be entered in favour of the Plaintiff in the terms of the declaratory reliefs and orders in the Amended Originating Summons filed on the 26th October, 2016.
(c)	Pursuant to Section 155 (4) of the Constitution and Order 12 Rules 8 (5) of the National Court Rules, the interim orders made on the 31st January, 2022 be set aside.
(d)	Costs are awarded against the First Defendant, such costs to be agreed or taxed.
_______________________________________________________________

Warner Shand Lawyers: Lawyers for the Plaintiff
Napu & Company Lawyers: Lawyers for the Defendant