Yauwe v Tonga [2023] PGNC 407; N10559 (1 November 2023)

N10559

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.144 OF 2023

BETWEEN:
VINCENT YAUWE, SAMUEL PONI, JERRY WAINA, PASTOR KEN RUPU, PASTOR ALPHONSE YAMBU and JANETH NAIKIRA on their behalf and for and on behalf of the 297 plaintiffs in the Schedule hereto.
Plaintiffs

AND:
WILLIAM TONGA in his capacity as Chairman of
LULUKA LAND GROUP INCORPORATED
First Defendant

AND:
LULUKA LAND GROUP INCORPORATED
Second Defendant

Kokopo & Waigani: David, J
2023: 24^th October & 1^st November

PRACTICE AND PROCEDURE – application to dismiss proceedings for failing to disclose a reasonable cause of action or for abuse of process of the Court - relevant principles considered and applied – indefeasibility of title - National Court Rules, Order 12 Rule 40(1)(a) and (c).

Cases Cited:
ANZ Bank (PNG) Ltd v Maita Yawi [2014] N5663
Anderson Agiru v The Electoral Commission & The State (2002) SC687
Chris v Kaeo [2019] N8163
Emas Estate Development Pty Ltd v Mea, Swokin, and The State [1993] PNGLR 215
Herman Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
Hasu v Venapo [2021] N9286
Kerry Lerro v Philip Stagg [2006] N3050
Laka v Nui [2013] SC1223
Mudge v Secretary for Lands [1985] PNGLR 387
Pokia v Yallon [2014] SC1336
Png Ready Mixed Concrete Pty Ltd v The State of Papua New Guinea & Others [1981] PNGLR 396
Philip Takori v Simon Yagari [2008] SC905
Rawali v Kob [2021] N8881
Rawali v Kob [2023] SC2423
Yap v Tan [1987] PNGLR 227
Yaferaka Incorporated Land Group v Namo’aporo Landowners Association Inc. [2020] N8303

Treatise Cited:
Injia and Lay, Civil Procedure in the National Court, Papua New Guinea, Colorcraft Ltd, 2016

Counsel:
Nobert Kubak, for the Plaintiffs
Natasha A. Rainol, for the Defendants

RULING ON MOTION

1^st November 2023

1. DAVID, J: INTRODUCTION: This is the Court’s ruling in relation to the defendants’ application moved pursuant to a notice of motion filed on 13 October 2023 seeking dismissal of the proceedings under Order 12 Rule 40(1) of the National Court Rules. In the notice of motion, the defendants aver as follows:

“Pursuant to Order 12 Rule 40(1)(a), (a), (c) and (d) of the National Court Rules., that the Court grant the defendants’ application for dismissal of the proceedings.” (sic)

2. The reference to sub-paragraph (d) was struck out on application by the defendants as there is no such alternative ground under Order 12 Rule 40(1) of the National Court Rules.

EVIDENCE

3. In support of the motion, the defendants rely on the Affidavit of William Tonga sworn and filed on 13 October 2023.

4. In contesting the application, the plaintiffs rely on the affidavit in Support of Alphonse Yambu sworn on 14 June 2023 and filed on 15 June 2023.

BRIEF BACKGROUND

5. The dispute between the parties concerns all that piece of land known as Portion 3275 Rem, Milinch Kokopo, Fourmil Rabaul, East New Britain Province contained in a State Lease issued over the land (but the Volume and Folio numbers marked and endorsed on the certificate of title in evidence are illegible) and containing an area of 343.5 hectares (the Disputed Land). The plaintiffs seek, among others, a number of declarations and other relief including; a declaration that the second defendant does not have an indefeasible title to the whole of the Disputed Land the subject of the imminent eviction action and therefore its actions are in breach of the law; a declaration that the defendants’ actions are in breach of the human rights of the plaintiffs; an order seeking enforcement of guaranteed rights and freedoms pursuant to s.57 of the Constitution, injunctions and compensation.

PRELIMINARY MATTER

Submissions

6. Mr. Kubak for the plaintiff raised a preliminary objection to the moving of the motion. He contended that the motion should be struck out for being incompetent and for lack of form contrary to the motions rules on pleading the concise reference to the Court’s jurisdiction to grant the order sought as it failed to specifically plead the alternative ground(s) relied on to dismiss the proceedings under Order 12 Rule 40(1) of the National Court Rules. Counsel referred the Court to the commentary in relation to Order 12 Rule 40 in Injia and Lay, Civil Procedure in the National Court, Papua New Guinea, 2016 at p.281 in particular where the learned authors state that each of the grounds under Rule 40 are alternative grounds which should be specifically pleaded in the notice of motion as a distinct ground and should not be lumped together. Mr. Kubak contended that each ground relied on was not specifically pleaded.

7. Ms. Rainol for the defendants submitted that the plaintiffs’ submission should be rejected as the notice of motion specifically pleads which of the alternative grounds under Order 12 Rule 40(1) are relied on as indicated by specific reference to the relevant sub-paragraphs.

Reasons for ruling

8. The grounds under Order 12 Rule 40(1) of the National Court Rules are alternative grounds which should be specifically pleaded in the notice of motion as a distinct ground and they should not be lumped together (Injia and Lay, Civil Procedure in the National Court, Papua New Guinea, Colorcraft Ltd, 2016 at 281.

9. Order 12 Rule 40(1) states:

“Where in any proceedings it appears to the Court that in relation to the 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 of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”

10. Order 4 Rule 49(8) of the National Court Rules gives the Court a wide discretion when it is required to determine whether or not to strike out a non-compliant motion (Pokia v Yallon (2014) SC1336, Yaferaka Incorporated Land Group v Namo’aporo Landowners Association Inc. (2020) N8303, Hasu v Venapo (2021) N9286).
    
11. In Pokia v Yallon (2014) SC1336 at [10] to [12], the Supreme Court made the following observations in relation to the question of competency of motions under Order 4 Rule 49(8) of the National Court Rules:
    

“10. The effect of Order 4, Rule 49(8) is that the motion cannot simply state the orders being sought by the mover of the motion. The motion must state the law, ie the court's jurisdiction, that the mover of the motion wants invoked to empower the court to make the order being sought. The reference to the court's jurisdiction must be concise, and it must be a correct and relevant reference to the source of jurisdiction. The reference must be to a written law. A reference to a decision of a court will not suffice.

11. We agree with the appellant that the notice of motion failed to meet the requirements of Order 4, Rule 49(8), in that:

• The laws referred to were not the correct source of jurisdiction to be relied on in a motion to set aside a default judgment. Such a motion should contain a concise reference to the relevant provisions of the National Court Rules: Order 12, Rule 8 and/or Order 12, Rule 35.
• The references to the two Supreme Court decisions were irrelevant and improper.
  • The reference to Section 155(4) of the Constitution was largely irrelevant.
• The reference to Order 12, Rule 40 of the National Court Rules was vague and imprecise.
  
  12. We do not agree, however, that the notice of motion was necessarily incompetent or that the primary Judge erred in hearing the motion. Order 4, Rule 49(8) vests a judge with a discretion to hear a motion that is non-compliant with this rule. Provided that the Judge is satisfied that the party responding to the motion (the appellant in this case) has been put on notice as to the case to be met and that no unfairness to that party will arise from hearing such a non-compliant motion, it is proper to hear the motion.”
      

12. The following considerations emerge from these observations:

1. Does the motion state the written law, such as any relevant provisions of the National Court Rules, that gives the Court jurisdiction to make the order being sought?
2. Where the motion is non-compliant and in the exercise of the Court’s discretion when it is required to determine whether or not to proceed to hear the matter nevertheless, the questions to ask may include:
   

(a) Has the party responding to the motion been put on notice as to the case to be met?
(b) Has it been shown that no unfairness to the party responding will arise from hearing such a non-compliant motion?

13. I have considered the dispositive Affidavit of William Tonga in which he essentially deposes that:

1. the second defendant, Luluka Land Group Incorporated has an indefeasible title to the Disputed Land (annexure “A” is a copy of the certificate of title);
   
2. Land rent owing by the second defendant to the Department of Lands & Physical Planning has accumulated to K1,121,351.00 (annexure “B”);
   
3. Judicial review proceedings, OS (JR) 69 of 2020, Theresa Tokau for and on behalf of Rakubul Clan, Vunajua Clan, Bitavurvur Clan and Vunagigi Clan as customary owners of the land covering the Raniolo Plantation, Kokopo v Luluka Land Group Inc. (No.209) & Ors challenging the title issued to the second defendant were summarily dismissed for want of standing of the plaintiff on 24 March 2023 (annexure “C”);
   
4. An eviction order was granted by the Kokopo District Court on 14 December 2020 in favour of the second defendant against the defendants in proceedings, CV: 08-17, 56-79, 82-87, 95-104, 110, 113-114, 117-119, 121-149, 151-155, 184-189, 214-219, 222-249, 251-256, 260-291, 300, 306-316, 328, 330-339, 340-341, 343-344, 348-349, 351-357, 360-379, 382-415, 421-429, 437, 447-448, 466-468, 471, 476-490, 502-528, 530-533 & 720/20, Luluka Land Group Incorporated v Vincent Yauwe & Family & 296 Others and allowed the defendants there twelve months from the date of the order to give peaceful possession to the second defendant otherwise the defendants there were at liberty to appeal the eviction orders within thirty days from the date of the order (District Court Eviction Order) (annexures “D”);
   
5. The plaintiffs have greatly prejudiced the rights of the defendants to quiet and peaceful possession of the Disputed Land by continuing to occupy the Disputed Land contrary to the District Court Eviction Order (annexure “F”); and
   
6. The plaintiffs have stubbornly refused to comply with the District Court Eviction Order and it is demonstrated by the filing of proceedings, WS 875 of 2021, Vincent Yauwe & Ors v William Tonga in his capacity as Chairman of Luluka Land Group Inc & Luluka Land Group Incorporated which were summarily dismissed for want prosecution on 10 December 2022 (annexure “E”).
   
14. I am satisfied that the notice of motion is substantively compliant with Order 4 Rule 49(8) of the National Court Rules because it specifically pleads the sub-paragraphs under Order 12 Rule 40(1) of the National Court Rules under which the defendants seek to dismiss the proceedings. The defendants however have pleaded sub-paragraph (a) twice in the notice of motion. There was no application at the hearing to amend the notice of motion to substitute sub-paragraph (b) for the second reference to sub-paragraph (a) so the latter is struck out. Therefore, the grounds specifically pleaded are those under sub-paragraphs (a) and (c).
    

15. In case I am wrong in arriving at the conclusion I have just reached (which I think I am not), I also state that I am satisfied that:

1. The plaintiffs have been put on notice as to the case to be met; and
2. It has been shown that no unfairness on the part of the plaintiffs will arise from hearing the motion as no issue about service of the motion including short service was raised.
   

16 In my deliberations, I have also considered the decisions of ANZ Bank (PNG) Ltd v Maita Yawi (2014) N5663, Hasu v Venapo (2021) N9286 and Chris v Kaeo (2019) N8163.

17. In ANZ Bank (PNG) Ltd v Maita Yawi (2014) N5663, the relevant motion relied on Order 12 Rule 40 without citing sub-rule (1) and any of the alternative grounds as the jurisdictional for seeking to dismiss the proceedings. The Court said there must be a precise pleading of the ground(s) relied on as without that the way the relief was pleaded created confusion and ambiguity and lacked clarity.

18. In Hasu v Venapo (2021) N9286, the relevant motion cited Order 12 Rule 40 without citing sub-rule 1 and any of the alternative grounds as the jurisdictional basis for seeking the dismissal of the proceedings. The Court said it had a wide discretion to hear non-compliant motions if parties understood the nature of the application and the grounds relied on by the defendant and such was the case there so it proceeded to hear the motion.

19. In Chris v Kaeo (2019) N8163, the relevant motion cited Order 12 Rule 40(1) as the jurisdictional basis for seeking the dismissal of the proceedings. The Court dismissed the motion for being flawed and incompetent because it did not specifically plead any of the alternative grounds relied on under Order 12 Rule 40(1) for the dismissal of the proceedings.

ISSUE

20. The main issue that I need to consider and determine is whether the proceedings should be dismissed.

ARE THE PROCEEDINGS AN ABUSE OF THE PROCESS OF THE COURT?
Submissions

21. Ms. Rainol for the defendants submits that the proceedings are a gross abuse of the process of the Court and should be dismissed as they try to stay the Eviction Order without filing an appeal to the National Court pursuant to the relevant provisions of the District Courts Act. Reference was had to the case of Rawali v Kob (2021) N8881 where in dismissing an appeal from the District Court’s decision ordering the appellant to give vacant possession of the property in dispute to the respondent within thirty days of the date of the decision, the Court held that maintaining an action by person with no title to the property in dispute against a person with title to it was an abuse of the process of the Court and the proceedings were frivolous or vexatious as they amounted to harassment of the respondent who was unnecessarily prevented from enjoying the use of the property.

22. It is contended that the District Court in its wisdom gave the plaintiffs twelve months to vacate the Disputed Land failing which a warrant would be issued directing the Police Force to enter the Disputed Land and evict the plaintiffs, their families, agents and associates with reasonable force if necessary and give possession of the Disputed Land to the second defendant.

23. Ms. Rainol submitted that the defendants were protected by s.33 of the Land Registration Act and have the right to enforce the District Court Eviction Order. She said the actions of the plaintiffs have made it difficult for the defendants to take possession of and enjoy the use of the Disputed Land by their tenants and members of the second defendant allocated certain portions of the Disputed Land.

24. Mr. Kubak essentially said while the plaintiffs have lost their right of appeal to the National Court, they are at liberty to enforce their guaranteed rights and freedoms under the Constitution to validate and legitimise their occupation of the Disputed Land. In addition, Mr. Kubak stated that the dispute between the parties was a matter taken up for a negotiated settlement.

Reasons for ruling

25. Under Order 12 Rule 40(1) of the National Court Rules, proceedings may be stayed or dismissed generally or in relation to any particular claims for relief if they; do not disclose a reasonable cause of action; are frivolous or vexatious; or are an abuse of the process of the Court.

26. The Court exercises a discretion to stay or dismiss proceedings under any of the grounds specified in Order 12 Rule 40(1).

27. The relevant principles to apply were summarised by Kandakasi, J in Kerry Lerro v Philip Stagg (2006) N3050 and endorsed by the Supreme Court in Philip Takori v Simon Yagari (2008) SC905 and they are set out below:

“1. Our judicial system should never permit a plaintiff or a defendant to be “driven from the judgment 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.

2. At the same time however, the law such as the Rules under consideration provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.
3. The object of these rules are therefore “to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious or obviously unsustainable.” In other words “the object of the rule was to get rid of frivolous actions.”
4. A claim may be frivolous if it can be characterized as so obviously untenable that it cannot possibly succeed or that the claim or defence is bound to fail if it proceeds to trial.
5. A claim or defence may be vexatious if the case amounts to a sham or one which cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or proving the claim.
6. With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that there are two (2) parts to the phrase “cause of action”. First, it entails a right given by law such as an entitlement to reasonable damages for breach of human rights under s.58 of the Constitution, commonly referred to as the “form of action”. Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action.
7. The phrase “cause of action” could thus be defined in terms of a legal right or form of action known to law with:

“every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved.”

8. A statement of claim or a defence (as the case may be) must therefore clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and relevant and necessary facts (not the evidence) giving rise to the form of action. It follows therefore that, where a statement of claim or a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, and instead leaves it to guess work, it should be struck out.
9. These rules provide a summary judgment procedure or remedy which is available to a plaintiff or a defendant, and one which vests and calls for an exercise of a discretion by the Court.
10. The discretion must be exercised sparingly and only in a case where the statement of claim or the defence (as the case might be) is “obviously and almost incontestably bad.” In other words this discretion can be exercised only in cases that “are plain and obvious so that the master or Judge can say at once that the statement of claim [or defence] as it stands, is insufficient, even if proved, to entitle the plaintiff [defendant] to what he asks for.
    

28. To these principles, His Honour added:

“[T]he pleadings must be so bad and or vague and is not a case of lack of particulars or a lack of better pleading which cannot be cured by a request and or orders for further and better particulars and or amendment respectively under O.8, rr. 36, 50 or 51 of the Rules. Lack of particulars or lack of better pleadings is distinctly separate from a failure to disclose a reasonable cause of action or an action that is frivolous, vexatious or harassment. As such, clear and separate consequences follow. There is provision under the rules for requesting and or orders for further and better particulars or better pleadings as opposed to a right in a defendant or an opposing party to apply for a dismissal straightaway. A party must be careful not to ask for and the Court must stop to ensure that it is not being asked to dismiss a claim because of lack of particulars or lack of proper pleading which can be cured by appropriate amendments to the pleadings. Regard must also be had to the fact that the Rules are not an end in themselves but a means to an end and by reason of which a strict compliance of the Rules can be dispensed in the interest of doing justice in accordance with O.1, r.7 of the Rules in appropriate cases.”

29. The Court also has an inherent jurisdiction to protect and safeguard against itself any possible abuse of the processes of the Court. The Supreme Court in the case of Anderson Agiru v The Electoral Commission & The State (2002) SC687 summarised the basic principles to be applied in considering whether or not there has been an abuse of the process of the court as follows:

“Those principles in essence are that, the court’s inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to those inherent powers is the court’s duty to protect itself by ensuring that vexatious litigants do not abuse the court’s process by instituting frivolous or vexatious suits. It behoves litigants therefore to carefully choose their causes of action before they commence proceedings in this court purporting to enforce their rights. The court should summarily dismiss the proceedings it considers frivolous, vexatious or is an abuse of process. (see generally, Ronney Wabia v BP Exploration Operating Co. Ltd & Ors, Unreported National Court Judgment N1697 dated 28 March 1998).

In The State v Peter Painke [1976] PNGLR 210, O’Leary AJ emphasized that:

“mere motive, however reprehensible, will not be sufficient” (to constitute abuse of process) it must be shown that, in the circumstances in which the interposition of the court is sought, the remedy would be unsuitable, and would enable the person obtaining it fraudulently to defeat the rights of others, whether legal or equitable.”

30. I now apply the principles in the context of the present case.

31. The Torrens system of land registration our country has adopted gives the registered proprietor title that is conclusive except to the extent that is expressly limited by the exceptions specified under s.33 of the Land Registration Act which states:

“(1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except–

(a) in the case of fraud; and

(b)[ the encumbrances notified by entry or memorial on the relevant folio of the Register; and

(c) the estate or interest of a proprietor claiming the same land under a prior instrument of title; and

(d) in case of the omission or misdescription of any right-of-way or other easement created in or existing on the same land; and

(e) in case of the wrong description of the land or of its boundaries; and

(f) as to a tenancy from year to year or for a term not exceeding three years created either before or after the issue of the instrument of title of the registered proprietor; and

(g) as provided in Section 28; and

(h) a lease, licence or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made; and

(i) any unpaid rates, taxes, or other money which, without reference to registration under this Act, are expressly declared by a law to be a charge on land in favour of the State or of a Department or officer of the State or of a public corporate body.

(2) The operation of Subsection (1) is not affected by the existence in any other person of an estate or interest, whether derived by grant from the State or otherwise, which, but for this Act, might be held to be paramount or to have priority.

32. In the seminal case of Mudge v Secretary for Lands (1985) PNGLR 387, the Supreme Court said that registration of leases under the provisions of the Land Registration Act is effective to vest an indefeasible title in the registered proprietor subject only to the exceptions enumerated in s.33 of the Land Registration Act and notwithstanding that a State Lease issued under the Land Act may have been issued irregularly and in breach of the provisions of that Act: Emas Estate Development Pty Ltd v Mea, Swokin, and The State [1993] PNGLR 215, Rawali v Kob (2023) SC2423.

33. By virtue of the registration of the title to the Disputed Land in the name of the second defendant, it has indefeasible title.

34. The second defendant obtained the District Court Eviction Order. It is not disputed that the District Court Eviction Order was never challenged by way of an appeal to the National Court pursuant to Part XI (ss.219-246) of the District Courts Act. Section 220(2) of the District Courts Act states that an appellant desiring to appeal a decision of the District Court must do so by lodging a notice of intention to appeal within one month with the Clerk of Court. The District Court Eviction Order was granted on 14 December 2020. It is valid and remains effective until set aside or discharged: Yap v Tan (1987) PNGLR 227.

35. Since the grant of the District Court Eviction Order, various proceedings have been taken in relation to the Disputed Land and these are noted above at paragraph 13. The outcomes generally favour the second defendant.

36. Given this, I accept the defendants’ submissions that the proceedings are an abuse of the process of the Court and should be dismissed.

DO THE PROCEEDINGS DISCLOSE A REASONABLE CAUSE OF ACTION?

Submissions

37. The defendants submit that as the proceedings are an abuse of the process of the Court, they fail to disclose a reasonable cause of action.

38. Mr. Kubak for the plaintiffs maintains his earlier submissions on the question of whether the proceedings are an abuse of the process of the Court. He reiterates that while the plaintiffs have lost their right of appeal to the National Court, they are at liberty to enforce their guaranteed rights and freedoms under the Constitution to validate and legitimise their occupation of the Disputed Land. Mr. Kubak again stated that the dispute between the parties was a matter taken up for a negotiated settlement.

Reasons for ruling

39. I have referred to the relevant principles to apply above which I adopt and apply in the context of the present case.

40. The law applying to landlords and squatters appears to be that proposed in png Ready Mixed Concrete Pty Ltd v The State of Papua New Guinea & Others [1981] PNGLR 396 where it was held that a group of illegal settlers on State land had acquired an equitable interest analogous to a licence to remain on the land by virtue of their long occupation without the applicant there who had been granted leases to certain lands the squatters were on and the State taking any action despite being aware of their existence. There, Miles, J held:

"The State having raised no objection to the presence of the occupants, they should be regarded as having an equitable interest analogous to a licence."

41. In Laka v Nui (2013) SC1223 at [12], the Supreme Court reaffirmed the principle that settlers do not have the right to live on the land for as long as they like, but are entitled to be given reasonable notice: see also Herman Gawi v png Ready Mixed Concrete Pty Ltd (1984) PNG LR 74.

42. As I have observed already, the District Court Eviction Order remains valid and effective. The plaintiffs were given twelve months from 14 December 2020 to vacate the Disputed Land. They have defied the District Court Eviction Order by continuing to remain on the Disputed Land for nearly two years and ten months now.

43. I have considered the evidence including the Affidavit in Support of Alphonse Yambu. The plaintiffs only have an equitable interest over the Disputed Land which they say they have occupied for a long time or many years or a long time. Be that as it may, equity follows the law. In the present case, as the second defendant has acquired an indefeasible title to the Disputed Land, its legal interest over the Disputed Land is far superior to the plaintiffs’ equitable interest. The plaintiffs must comply with the District Court Eviction Order unless it is set aside or discharged. In the result, I find that the plaintiffs have failed to disclose a reasonable cause of action.

44. In addition, I agree with Ms. Rainol’s submission that as the proceedings are an abuse of the process of the Court, the proceedings fail to disclose a reasonable cause of action.

CONCLUSION

45. The defendants have persuaded the Court that the proceedings should be dismissed as they; are an abuse of the process of the Court; and fail to disclose any reasonable cause of action.

COSTS

46. Costs is a discretionary matter. In the present case, costs shall follow the event, ie, the plaintiffs shall pay the defendants’ costs of and incidental to the application to dismiss the proceedings, which shall, if not agreed, be taxed.

ORDERS

47. The formal orders of the Court are:

1. The proceedings are dismissed under Order 12 Rule 40(1)(a) and (c) of the National Court Rules.
2. Costs shall follow the event, ie, the plaintiffs shall pay the defendants’ costs of and incidental to the application to dismiss the proceedings, which shall, if not agreed, be taxed.
3. Time is abridged.
   

Ruling and orders accordingly.
___________________________________________________________________
Kubak & Kubak: Lawyers for the Plaintiffs
Natphil: Lawyers for the Defendants