Kais v Tagau [2022] PGNC 377; N9882 (12 September 2022)

N9882

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 68 OF 2021

BETWEEN:
VITUS KAIS, PETER SIARUP, TO, BAMATU, WOLEF BAMATU, MAUEL SAPURI, SIM SIPIEL, MEPI VITUS, ERLBERT SIARUP, TARIUS SIARUP, JUACKIM GUNAM, JAUL SAGUI AND JOHN DAP
Appellants

AND:
SALI TAGAU AND SELON LIMITED
Respondents


Madang: Narokobi J
2022: 7^th & 12^th September

RES JUDICATA – application to dismiss for being estopped by operation of doctrine of res judicata – considerations for dismissal

REPRESENTATIVE ACTION – whether proceedings representative action- distinction between representative action and separate causes of action of numerous parties

Facts

The Respondents have filed an application to dismiss the proceedings for being res judicata and for lack of authority to commence proceedings by Mr Vitus Kais, one of the appellants.

Held

(1) The appellant Mr Vitus Kais raises a different issue to that which was previously determined by the court and therefore the doctrine of res judicata does not apply.
(2) The proceeding is not a representative action as it concerns parties with separate causes of action.

Cases Cited
Christian v Namaliu (1996) SC1583
Kais v Tagau (2020) N8191
Tagau v Selon Ltd (2018) SC1755

Counsel

Mr Vitus Kais, in person

Mr. M Yalapan, for the Respondents

RULING

12^th September, 2022

1. NAROKOBI J: The Appellants have filed an appeal contesting the District Court’s decision to evict them from a portion of land described as Mililat Plantation, Portions 1056, 1057, 1058, 1059 and 1060. The Respondents have filed an application to dismiss the proceedings for being res judicata and for lack of authority to commence proceedings upon Mr Vitus Kais, one of the appellants.
   
2. The Madang District Court on 25 October 2021 made the following orders:
   
   1. The Defendants and any other persons unlawfully occupying the property described as Mililat Plantation on Portions 1056, 1057, 1058, 1059 and 1060 are to vacate the property within 30 days that is by or before the 24^th of November 2021.
   2. If the Defendants and any other persons unlawfully occupying the property described as Mililat Plantations on Portions 1056, 1057, 1058, 1059, and 1060 do not vacate the property within 30 days that is by or before the 24^th of November 2021 thereafter:
      
      • (a) Pursuant to Section 6(2)(b) of the Summary Ejectment Act, A warrant to enter by force shall be issued directing member(s) of the Police Force at Madang Police Station to enter and forcefully remove the Defendants and any other person in unlawful occupation of the said Portions of Mililat Plantation and:
      • (b) To give vacant possession of the said portions of Millat Plantation to the Complainants.
   3. The Defendants are prohibited from entering/accessing or dealing with the portions of Mililat Plantation and are to stay 100m away to not disturb and interfere with the Complainants quiet use and enjoyment of the said portions of Mililat Plantation.
   4. Any breach of the peace by the Defendants in not complying with the above order No 3 shall result in arrest and brought to court to be dealt with according to law.
   5. Parties shall bear their own costs of the proceedings.
      
3. The appellant raised three grounds of appeal. The grounds of appeal relate to the precise location of the land the appellant is occupying in relation to the land owned by the Respondent:
   
   • The learned magistrate erred in fact and by not taking into consideration the fact that the Appellants are living outside of the surveyed boundary of the disputed land, namely, Portions 1056, 1057, 1058, 1059, 1060 and 1061, the land commonly known and described as Mililat Plantation.
   • There was no material evidence that was adduced in the District Court at the relevant time for the learned magistrate to make such a finding. No physical inspection was conducted at the site of the land in dispute to ensure that the Appellants were in fact squatting unlawfully on the disputed land.
   • Order 3 of the orders issued by the learned magistrate is ambiguous and unenforceable as the Appellants have built their permanent home on the fringes of the disputed land, outside of the land described as Mililat Plantation. Such homes are permanent and are within very close proximity of the disputed land.
     
4. It became obvious during the proceedings that the other appellants were not interested in the case. They have not filed any notice of appearance, nor appeared in the proceedings. There is no authority provided to Vitus Kais to initiate proceedings on their behalf. Vitus Kais appears to be the sole Appellant pursuing this case. He is therefore only representing his interest.
   
5. The Respondent then filed an application to dismiss the proceedings on the grounds of res judicata and for lack of representation. I heard both parties. On 5 April 2022 I refused the application for res judicata on the basis that the issue was whether the portion of area the Appellant was residing in was located within the area which the Courts have recognised as belonging to the Respondents. Mr Vitus Kais is not disputing title to the property but the correct boundaries of the property the Respondent owns. The orders I made on 5 April 2022 were:
   

1. The application to dismiss the appeal is refused.

2. Respondent to engage a registered surveyor and with the assistance of the Police and cooperation of the Appellants conduct a survey and report back to the court in the June 2022 Call Over as to whether the Appellants are residing in the land the subject of the Supreme Court decision.
3. After the presentation of the report the respondent is at liberty to apply to dismiss the appeal on the grounds of res judicata.
   
6. A survey was conducted by the Respondent through a surveyor, one Bob Luien. He said he conducted the survey on 27 April 2022. He says in his report that the Appellant is residing within the boundaries of the Respondent’s land. But he does not say where in Portion 1056 is Mr Kais residing in. More particularly the portion of land described as 1056. Significantly he makes no mention of the survey being conducted with the cooperation of the Appellants, more particularly Mr Vitus Kais.
   
7. As one of the Appellants, Mr Vitus Kais says that he is residing in property belonging to the Roman Catholic Church, Portion 65. I directed him to obtain confirmation from the Church that this is indeed the case. Mr Kais has since then filed an affidavit stating that the Church would not be filing any affidavit to support him. He was told that the Church does not keep records of where villages are located within Church land.
   
8. The Respondent them moved to dismiss the proceedings again on the basis that it was res judicata and for lack of authority to represent. The Respondents are understandably frustrated, asking when they will realise the fruits of their judgment. Mr Yalapan refers to decisions of the District Court, National Court and Supreme Court to support his contention (DCR 2228 of 2008, Selon Investment Ltd v Vitus Kais and 11 Others; Kais v Tagau (2020) N8191; Tagau v Selon Ltd (2018) SC 1755, SCA No 30 of 2020, Kais and Ors v Sali Tagau and Anor). The outcome from these proceedings confirms his client as the registered proprietor of the land the subject of these proceedings, especially Portion 1056.
   
9. Let me deal with the issue of representation first. In the case of Kais v Tagau (2020) N8191, her Honour Thompson J in dealing with more or less the same parties, after examining the proceedings, determined that the proceedings were not a representative action but were separate causes of action. There was therefore no need for authority to represent. I take this approach in this case. Mr Kais interests is not identical to the other named appellants. I therefore refuse the application to dismiss for want of authority of Mr Kais.
   
10. Turning now to the issue of res judicata. In the often-cited case on the doctrine of res judicata in Papua New Guinea Christian v Namaliu (1996) SC1583 this statement that the court adopted from the English position best describes the doctrine and its implications:
    

“21. In the text the Doctrine of Res-Judicata by Spencer Bower and Turner, the following introductory statement succinctly summarise the effect of res judicata :

“A final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause of matter in litigation, and over the parties thereto, disposes once and for all the matters decided, so that they cannot afterwards be raised for re-litigation between the same parties or their privies. The effect of such a decision is two-fold.

In the first place, the judicial decision estops or precludes any party to the litigation from disputing, against any other party thereto, in any later litigation, the correctness of the earlier decision in law and fact. The same issue cannot be raised again between them, and this principle extends to all matters of law and fact which the judgement, decree or order necessarily established as the legal foundation or justification of the conclusion reached by the court.

In the second place, by virtue of the decision the right or cause of action set up in the suit is extinguished, merging in the judgement which is pronounced. The result is that no further claim may be made upon the same cause of action in any subsequent proceedings between the same parties or their privies.”

11. The meat of this explanation is whether the issue has been litigated already? If it has been, then it operates as a bar to issuing proceedings again. Any person taken to court would be entitled to rely on the doctrine of res judicata as a complete defence to the proceedings.
    
12. I have already determined that the application for dismissal for res judicata should be refused. I did this on the basis that the main issue in this case is whether Mr Vitus Kais is living in the Respondents’ property or not. The issue is not who owns the property. This has already been determined by the Supreme Court as I have said earlier. If Mr Kais claims title to Portion 1056, this would most certainly be res judicata. The issue is where is the boundary of Portion 1056.
    
13. I had hoped that after the survey, which I ordered that it was to be done with the cooperation of all parties, would have resolved the issue. That would then put an end to the matter. However, the appellant Mr Vitus Kais is saying that he is not aware of this survey being carried out. This indicates to me that the survey was not done with the cooperation of all parties, especially Mr Vitus Kais.
    
14. Mr Kais has also not been successful in getting a representative of the Catholic Church to depose to whether it owns the land Mr Kais is living in. Initially I was going to hold this against Mr Kais. But on further reflection, it might not be fair to him to obtain such evidence when the matter is at its interlocutory stage. It is a matter which goes to the grounds of the appeal and should be determined at the hearing of the appeal.
    
15. Mr Yalapan in submissions, asks when the Respondent will be entitled to the “fruits of their court victory?” There are several portions of land in Mililat Plantation that were the subject of court proceedings. They are, Portions 1056, 1057, 1058, 1059 and 1060. Out of these portions, Mr Vitus Kais is concerned with Portion 1056. He says he lives next to this portion but not in it. By this, the Respondent will be entitled to enjoy the use of all these portions of land. The only question is in relation to Portion 1056 – is Mr Vitus Kais living in that portion as per the surveyed map or not? Since this issue was not resolved by all parties working together, the matter will have to go for substantive hearing.
    
16. The appropriate course for me to follow now, is to let the matter proceed to full hearing and determine the case on the grounds of the appeal raised by the appellant Mr Vitus Kais. It would not be proper to determine the substantive issues in an interlocutory manner. Without the cooperation of the appellant on the survey being carried out, they are entitled to question the independence of the investigation and subsequent report. The application to dismiss for res judicata and lack of representation is therefore refused, and the matter should proceed to hearing of the appeal in an expeditious manner. Each party will bear their own costs.
    
17. The matter is adjourned to the next call over in October for the appellant to prepare an appeal book for all parties to endorse.
    

Yalapan & Associates Lawyers: Lawyers for First and Second Respondents