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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS 1405 OF 2019 (CC1)
BETWEEN:
LEO TOHICHEM
Plaintiff/ Respondent
AND:
JACINTA MANUA
Second Plaintiff/Respondent
AND:
DAVID KAURA
Third Plaintiff/Respondent
AND:
JULIE WURR
Fourth Plaintiff/Respondent
AND:
LUCAS ROIKA and ALICE ROIKA
First Defendant/ Second Applicant
AND:
ROGER GILENG OTTO, KENNETH COOK and DOMINIC IRA
Second Defendant
AND:
MADELINE PAULISBO
Third Defendant/ First Applicant
AND:
KEVIN MING AHIPUM
Fourth Defendant/ First Applicant
AND:
NATIONAL HOUSING CORPORATION
Fifth Defendant/ First Applicant
Waigani: Bre, AJ
2024: 28th March & 12th April
CIVIL PRACTICE AND PROCEDURE – applications for summary dismissal pursuant to Order 10 rule 40(1)(b) or alternatively Order 10 rule 5 of the National Court Rules – fraud allegations precluded from summary dismissal under O12r37 NCR- however, applications for want of prosecution under O10 r5 NCR may be considered - considerations of summary disposal for want of prosecution considered – evidence shows no default – applications refused.
Facts
The defendants applied for summary dismissal of the proceedings on grounds that the pleadings were defective, frivolous and vexatious or alternatively for want of prosecution.
Held
Proceedings raising fraud allegations cannot be summarily dismissed for being frivolous or vexatious pursuant to Order 12 rule 37(b)
NCR.
The applicants have not provided sufficient evidence to discharge their burden of proof that the plaintiffs defaulted or delayed in
prosecuting the proceeding to trial. The plaintiffs have provided a reasonable explanation for the delay in proceeding to trial,
there is no default on their part.
Instead, the defendants' delay in prosecuting their motions has contributed to the status of the proceeding.
Cases Cited
Kappo No 5 Pty Ltd v Chi Kung Wong and Kuien Mi Wong (1997) SC520
Keka v Yafaet (2018) SC1673
Kerry Lerro v Philip Stagg, Valentine Kambori & The State (2006) N3950
Lord & Company Ltd v Inapero (2014) SC1624
Philip Takori v Simon Yagari (2007) SC905 and George Solomon v David Raim (2020) N8428
Papua Club Inc v Nusaum Holdings Ltd (2002) N2273
Viviso Seravo v Jack Bahafo (2001) N2078
Ahmadiyya Muslim Mission v Bank South Pacific Ltd (2005) N2845
John Niale v Sepik Coffee Producers Ltd (2004) N2637
Legislation
Claims By and Against the State Act 1996, s5.
Land Registration Act Chapter 191
National Court Rules O10 r40(1)(b), O12r37, O19r 9A(15)(1)(a) and(b).
Counsel
Mr G Anis, for the Third to the Fifth Defendants/ First Applicants
Ms V Yabone, for the First Defendants/Second Applicants
Mr J Sirigoi, for the Plaintiffs/Respondents
RULING
12th April 2024
2. The defendants moved two motions seeking similar relief for summary dismissal of proceeding and other relief pertaining to competency
and standing as submitted.
BACKGROUND
3. This proceeding is brought by sitting tenants of National Housing Commission property located at Section 082 Allotment 06 Boroko,
NCD. The plaintiffs allege fraud in the conveyance and transfer of the title to the property to the first defendants by the third
to the fifth defendants. The proceeding was filed on 30th October 2019. The first defendants filed their Defence on 10 December 2019 and amended Defence on 13 December 2019. The third defendant
filed her Defence late on 29 June 2021 with leave of Court granted on 16 June 2021 while the fourth and fifth defendants have not
filed any defence. The proceeding has not yet been set down for trial.
THE APPLICATIONS
4. The third, fourth and fifth defendants motion was filed on 04 July 2023
(Doc 43) seeking the following relief:-
1. Pursuant to Order 12 Rule 1 of the National Court Rules, Section 155 (4) of the Constitution and the inherent powers of the Court, leave be granted to the Third, Fourth and Fifth Defendants to withdraw the Notice of Motion file 14 March 2022.
2. Pursuant to Order 12 Rule 40 (1) (b) of the National Court Rules in the entire proceedings be dismissed for being frivolous and vexatious.
3. Alternatively, pursuant to Order 10 Rule 5 and/or Order 10 Rule 9A (15)(1) (a) and (2); and/or pursuant to Order 4 Rule 36 of the National Court Rules proceeding be dismissed in its entirety for want for prosecution.
4. Cost of incidentals to this proceedings be paid by the Plaintiffs in equal proportion.
5. Such further and other orders as the Court deems fit and proper.
5. The first defendant’s motion was filed earlier in time on 05 February 2020 (Doc 15) and seeks similar relief plus an alternate relief to set aside restraining orders issued earlier, the relief sought are in the following terms:-
1. Pursuant to Order 12 Rule 8 (3) (a) and Order 4 Rule 49 (19) (4) (1) of the Motions (Amendment) Rules 2005, the exparte orders of 28th November, 2019 be set aside.
2. Pursuant to Order 12 Rule 40 of the National Court Rules the entire proceedings be dismissed for;
a) failure to disclose reasonable cause of action
b) being frivolous or vexatious; or
c) abuse of the process of the Court
3. The plaintiffs pay the first defendants costs of defending these proceedings.
4. Any other order this Court deems fit.
EVIDENCE
6. The third, fourth and the fifth defendants /first applicants rely on the following affidavits: -
7. The first defendants /the second applicants rely on the Affidavit of Lucas Roika filed on 05 February 2020 (Doc 16).
8. The respondent /plaintiff relies on the affidavit of Leo Tohichem filed 09 July 2023 (Doc 45) and first applicants Lawyer Gilbert Anis affidavit filed 4 July 2023.
SUBMISSIONS
First Applicants’ submission
9. The first applicants' submissions are that this proceeding should be dismissed in its entirety for being frivolous and vexatious
or alternately for want of prosecution. Counsel made submissions on want of prosecution first followed by summary dismissal on grounds
of the pleadings being frivolous and vexatious.
For want of prosecution, the first applicant submits that the proceeding was filed four years ago with no reasonable explanation of
the delay in proceeding to trial. That the first defendants' interest to the property has been adversely affected during this time
in not accessing the property and the defendants have incurred costs in defending this proceeding. In terms of the proceeding being
frivolous and vexatious, Mr Anis raised jurisdictional issues concerning competency due to lack of section 5 CBASA notice, s33 Land Registration Act (LRA) indefeasible nature of the title and the plaintiff's lack of standing in not having any sufficient interests in the property
after its sale. Counsel relied on relevant caselaw to support his submission.
Second Applicant's submission
10. The second applicants accept and adopt the first applicant's submissions as their own but emphasised that the pleadings are bad as the fraud allegations lack particulars contrary to Order 8 rule 30 of the National Court Rules( NCR), that the individual defendants are not the proper parties and have been incorrectly named, or, alternatively, to set aside the restraining orders. Ms. Yabone referred to the pleadings lacking particulars in not alleging specific details about who did what, where or when, and in stressing that the party to the transaction with the first defendant is the National Housing Estates Limited, and not the National Housing Corporation. She took issue with the rest of the defendant's being named in their personal capacity. Counsel pointed out that the first defendant is a bona fide purchaser of the property who spent K1.5million on purchasing the property with final settlement and transfer on 09 May 2018. The first defendants have been prejudiced with no access to the property since 2019 and alternatively seeks that the restraining order be set aside. The first defendants also sought an alternate relief to set aside the restraining order granted earlier on 28 November 2019 be set aside on the basis that material facts pertaining to the plaintiff's appeal against District Court eviction orders were not presented to the Court when the restraining orders were issued.
Respondents Submission
11. The plaintiffs/respondents responded that there is a reasonable explanation for the delay and referred to the affidavit of the first plaintiff, Leo Tohichem. The respondents object to Counsel Anis affidavit on the basis that it lacks details about the want of prosecution. In response to the alleged defective pleadings, counsel for the plaintiffs submitted that they have a right to be heard and the pleadings can be cured by amendment or the defendants can seek further and better particulars. Mr Sirigoi submitted in relation to the lack of section 5 notice that the issue should have been raised earlier and in terms of the plaintiffs standing, their tenancy agreements with the fifth defendant gives them sufficient interest to bring the proceedings.
ISSUES
12. The issues arising for deliberation are:
1) whether the proceeding should be summarily dismissed because they are frivolous and vexatious in that:-
a) the pleadings are defective and incontestably bad;
b) the proceeding is incompetent in that;
i) the proceeding is incompetent for lack of section 5 CBASA notice,
ii) plaintiffs have no interest in the property and lack
standing;
2) whether the proceeding should be dismissed for want of prosecution, or in alternative;
3) whether the restraining order of 28 November 2019 should be set
aside.
LAW
13. The applicants rely on the following law and relevant caselaw to invoke the Court's jurisdiction to summarily dismiss the proceedings
in their entirety.
Order 10 rule 5 of the National Court Rules (NCR):-
"5. Want of prosecution.
Where a plaintiff does not, within six weeks after the pleadings are closed, set the proceedings down for trial, the Court, on motion by any other party, may, on terms, dismiss the proceedings or make such other order as the Court thinks fit."
Order 12 rule 40(1)(b) NCR reads:-
"40. Frivolity, etc.
(1) 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) ...
(b) the proceedings are frivolous or vexatious; or
(c) ..."
Section 33(1) LRA reads:-
"33. Protection Of Registered Proprietor.
(1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except–
(a) in the case of fraud ..."
Section 5 of the Claims By and Against the State Act 1996 ( 'ÇBASA') reads:-
"5. Notice Of Claims Against The State.
(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this section and Section 5A by the claimant to -
(a) the Departmental Head of the Department responsible for justice matters; or
(b)the Solicitor-General."
ANALYSIS
14. Summary dismissal is a discretionary relief that must be carefully considered and deliberated on considering the evidence, counsel’s submissions, and decided case precedents. Before proceeding further, the first applicant’s submission for leave to withdraw its earlier Notice of Motion filed 14 March 2022, is granted as the relief sought are similar. Leave is granted to avoid duplicity.
15. Order 12 rule 40(1)(b) NCR is located in Division 4 – Summary disposal. Division 4 starts with rule 37 and ends with rule 43. Order 12 rule 37 NCR outlines certain proceedings that are precluded from summary disposal or dismissal under Division 4. Order 12 rule 37 NCR reads:-
"37. Application of Division 4.
This Division applies to all proceedings except proceedings which include
(a) a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage; or
(b) a claim by the plaintiff based on an allegation of fraud; or
(c) a claim for damages arising in respect of the death of any person or in respect of personal injuries to any
person."
(emphasis added)
16. In Kappo No 5 Pty Ltd v Chi Kung Wong and Kuien Mi Wong (1997) SC520[1], the Supreme Court considered an appeal against summary judgment but made observations about Order 12 rule 37 that are useful, which I adopt, these are:-
" Where a claim is based on fraud, it was submitted that the summary judgment procedure is not applicable under O 12 r 37 of the Rules. This rule clearly states that where there is a claim based on fraud, summary procedure is not applicable. It is clearly intended that such allegations must be dealt with at the substantive trial. We find that the trial judge made no reference to this rule in his judgment. If his attention was drawn to the rule he may not have entered judgment against the second appellants. We find that the trial judge erred in this regard. "
( Emphasis added)
17. Counsels have not referred me to this provision in their submissions but it is very clear that I must apply Order 12 rule 37(b) NCR to refuse the defendants applications for summary dismissal of the proceeding for being frivolous or vexatious under Order 12 rule 40 (1)(b) NCR.
18. The defendants raised some good arguments about defects in the pleadings however, I am clearly precluded by Order 12 rule 37(b) from considering the applicants arguments on frivolous or vexatious pleadings under Order 12 rule 40(1)(b) NCR. The application on this ground fails by virtue of Order 12 rule 37 (b) NCR.
2) Want of prosecution
19. However, unlike the exclusions of Divisions 4 or Order 12 NCR, summary dismissal for want of prosecution for non-compliance with the Court rules in progressing the matter to trial is a recourse available to a defendant. In Lord & Company Ltd v Inapero (2014) SC1624, the Court held that the exclusion in Order 12 rule 37 NCR does not apply to the Court's power to summarily dispose applications for want of prosecution.
Order 10 rule 5 of the National Court Rules (NCR) provides:-
"5. Want of prosecution.
Where a plaintiff does not, within six weeks after the pleadings are closed, set the proceedings down for trial, the Court, on motion by any other party, may, on terms, dismiss the proceedings or make such other order as the Court thinks fit."
20. The principles guiding the exercise of discretion for want of prosecution under Order 10 rule 5 NCR which are similar to Order 10 Rule 9A(15)(1) (a) and (2) NCR are as outlined in the often cited cases of Viviso Seravo v Jack Bahafo (2001) N2078, Ahmadiyya Muslim Mission v Bank South Pacific Ltd (2005) N2845 and John Niale v Sepik Coffee Producers Ltd (2004) N2637 as follows:
(i) The plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his or her claim;
(ii) There is no reasonable explanation given by the plaintiff for the delay;
(iii) The delay has caused injustice or prejudice to the defendant;
(iv) The conduct of the parties and their lawyers warrants; and
(v) It is in the interests of justice.”
21. In Lord & Company Ltd v Inapero the Supreme Court distinguished between summary judgments under Order 12 Division 4 and summary disposal under other Court rules such as for want of prosecution under Order 10 Rule 9A (15) NCR. The Court held that although both divisions are titled ‘summary disposal’, summary disposal under Order 12 Division 4 requires examination of the evidence and I would add pleadings, to decide whether summary judgment should be granted, whereas; summarily disposal applies to lack of compliance with the Court rules or in the case of Lord & Company to the lack of compliance with Court directions. The Supreme Court clarified at [53]:-
" In our view his Honour below in these proceedings dealt “summarily” with the cases before him. His judgments, however, did not constitute “summary disposal” within the meaning of Order 12 Division 4 of the National Court Rules. Accordingly, while we consider that the judgments of his Honour of 6 May 2009 were summary disposals, they were not summary disposals whereby the National Court is limited by the terms of Order 12 Rule 37(b). For the purposes of the application of the National Court Rules it was open to his Honour to summarily dispose of the proceedings before him, notwithstanding that they were founded on allegations of fraud. " (emphasis added)
22. This provides authority for me to proceed to hear the defendants' submissions on want of prosecution. However, before I do, the Supreme Court in Lord & Company did not end there, they went on to rule that the trial judge must consider the serious nature of fraud allegations in deciding whether to summarily dispose of proceedings for want of prosecution. The Court held at [59] and [60]:-
" In our view ... this Court has previously cautioned that care needs to be taken in giving default judgment where fraud or deceit are alleged... In our view similar principles are applicable in cases involving summary disposal, even those outside the scope of Order 12 Division 4 of the National Court Rules.
Because it is clear that his Honour did not have regard to a material consideration in determining whether to exercise his discretion, namely the fact that serious allegations of fraud were pleaded in both statements of claim, we consider that the exercise of his discretion miscarried. " (Emphasis added)
23. This means that I must consider the fraud allegations as a material factor in exercising of my discretion. I will therefore address want of prosecution applying the considerations in Viviso Seravo v Jack Bahafo, Ahmadiyya Muslim Mission v Bank South Pacific Ltd and John Niale v Sepik Coffee Producers Ltd and the fraud allegations under the interest of justice consideration.
A) Have the plaintiffs defaulted in prosecuting the matter?
24. Order 10 rule 5 of the National Court Rules requires a plaintiff to set the proceeding down for trial within six weeks after pleadings are closed. The Court has discretionary powers to "dismiss the proceedings or make such other order as the Court thinks fit"[2] where a defendant has filed a motion to dismiss the proceeding for want of prosecution invoking this rule.
25. The key element for the applicant to discharge under Order 10 rule 5 NCR is that pleadings have closed and there was default and delay in setting the matter down for trial. The history of the pleadings will confirm whether the pleadings have closed. The Writ of Summons was filed on 30 October 2019, the first Defendants filed their Defence on 10 December 2019 and amended defence on 13 December 2019, the third defendant filed her Defence late on 29 June 2021 with leave of Court which was granted on 16 June 2021. There are no further amended pleadings or cross claims. According to Order 8 rule 23 NCR and Order 10 rule 5 NCR, pleadings close after six weeks from the last pleading. The last pleading filed was the third defendant’s defence on 29 June 2021. After factoring in the required six weeks after a reply (if any), by end of July or August 2021, the pleadings would have closed and the proceeding ready to be set down for trial.
26. The issue for deliberation is one of evidence, I therefore turn to the parties evidence in support or otherwise of the applications. The evidentiary onus is on the applicants to prove that the plaintiff default and had not reasonable explanation about the alleged delay in setting the mater down for trial.
Applicant's evidence
27. The first applicant's evidence of default by the plaintiffs are contained in the affidavit of the first applicants lawyer, Gilbert Anis, who deposes to delay in prosecuting the matter by referencing the dated the proceeding was filed, been 30th October 2019. He does not provide any further details about whether any correspondences were exchanged with the plaintiffs' in raising his clients' concerns about the delay or indicating whether his clients' had taken any action to have the matter expedited or dismissed. He also did not depose to the date when pleadings closed nor disclosed any documentary evidence to support his submissions on default and delay. His affidavit was quite brief and taken issue with by the respondents. I do not find the affidavit provided sufficient evidence of default or delay by the plaintiff and do not place much weight on it.
28. The third defendant Madlene Paulisbo deposes in her affidavit filed 19 March 2021 that she is the acting Chief Executive Officer of the National Housing Estate Limited (NHEL) and deposes to the background of the property regarding ownership of the property in dispute. She takes issue with the action against her in her personal capacity. For purposes of the application, I find her evidence relevant only to a limited extent as her evidence is more for substantive considerations on the merits of the claim and does not provide much assistance in the process going to want of prosecution, the subject of this application. The relevant factor I note is her objection to being sued in her private capacity and the background about the potential liquidation or legal status of the NHEL.
29. The second applicants relied on the affidavit of Lucas Roika, the first defendant filed on 05 February 2020. He deposes to buying the property from NHEL with the contract of sale and transfer instruments executed on 18 February 2016. I rely on certain aspects of Lucas Roika’s affidavit relating to the conveyance of the property.
The Respondents evidence
30. The respondents rely on the affidavit of the first plaintiff, Leo Tohichem to counter the want of prosecution application. He deposes to the history of the proceeding, the defences filed and applications filed by the defendants which are being heard now and the various changes of lawyers by both parties.
As to the application, Leo Tohichem's affidavit is relevant and I rely on it to address the guiding principles in deciding whether the applicants have established want of prosecution.
Consideration of evidence to the issue of default or delay
31. Technically and practically, pleadings have long closed, however a plaintiff may be prevented from complying with the National Court Rules to seek consent to set the matter down for trial where there are pending interlocutory applications for summary dismissal by the defendants. In that respect, I refer to the history of proceedings as set out in Leo Tohichem’s affidavit. He deposes to obtaining restraining orders on 28 November 2019 with service on that order on 30 January 2020.
32. On 04 March 2020 the first defendant filed his motion to dismiss the entire proceeding which was not heard for a couple of years. It was finally heard before me on 28 March 2024 and is the subject of this decision. He also deposes to the third defendant’s lawyers filing a similar application the following year on 16 March 2021. Both counsels law firms represented the defendants then. Mr Anis affidavit does not depose to why the applications were not heard earlier. Ms Yabone has also not explained why the first defendant’s 2020 motion was not heard earlier. Want of prosecution goes both ways. Order 4 rule 49 (17) and (18) NRC requires motions to be moved within one month unless there are sufficient reasons to show why it has not been moved earlier.
33. Further the first plaintiff deposes to their lawyers writing to the Registry on 08 May 2023 for the matter to be listed for directions hearing which was listed on 06 June 2023, where the first defendants lawyer mentioned the outstanding 2020 motion, however, the Court did not fix a date for its hearing and adjourned it generally. The plaintiffs’ evidence satisfies me that the plaintiff took appropriate steps to progress the proceeding to trial and that the first defendant still intended to move its summary dismissal application.
34. The defendants have not helped their case in filing relevant evidence to clarify why the applications delayed in being heard and what if any, actions they took to communicate their displeasure of the supposed delay by the plaintiffs in the prosecution of the matter to trial.
35. I am satisfied based on the evidence that the plaintiffs have provided a reasonable explanation as to why the proceedings were not set down for trial. I accept their evidence that the defendants pending applications contributed to the current status of the substantive proceeding. I am satisfied that there has been no intentional default nor delay on the part of the plaintiffs in setting the matter down for trial. Having made this finding, it is not necessary to consider the other guiding principles apart from prejudice and the interests of justice.
B) Prejudice to the defendants?
36. The first defendants' evidence is that they expanded substantial funds of K1.5million to purchase the property from the NHEL and to date have not taken vacant possession of the property because of the restraining orders of 28 November 2019. The Third defendant takes issue with the suit against her in her personnel capacity for a decision done in her official capacity as the acting Chief Executive Officer of the NHEL. While I appreciate both arguments, the fact of the matter is that neither of the defendants have explained sufficiently in their affidavits why they did not promptly move their applications for summary dismissal filed on 05 February 2020 and 14 March 2022. This evidence would be relevant for supporting their application. The issue of vacant possession is a matter the first defendants can demand from the NHEL or NHC according to the terms of the executed contract (if there exists such a provision which should be a standard term of contract) and is relevant factor for substantive arguments.
37. Additionally, as to counsels' submissions on indefeasibility of title under s33 of the Land Registration Act Chapter 191, fraud is one factor where proved can result in rendering the title void and is an allegation that has been raised by the plaintiffs. I consider submissions on s33LRA will be relevant then, but do not consider it a relevant factor in determining this application where default in prosecuting the matter to trial has not been established by the defendants/applicants.
38. I am also mindful that the first defendants motion remained pending since 05 February 2020, a period of nearly four years and
the third to the fifth defendants motion remained pending for nearly two years since it was filed on 14 March 2022. This shows the
defendants also contributed to the proceedings not progressing in a timely manner to trial.
All these factors preclude me from finding prejudice was caused to the defendants.
C) Interest of Justice
39. The interests of justice requires the Court to have regard to the public interest of finality to litigation but to also equally preserve the right of the plaintiff to litigate and not to shut out or have the plaintiff “driven from the judgment seat” in a summary way. Kerry Lerro v Philip Stagg, Valentine Kambori & The State (2006) N3950; Philip Takori v Simon Yagari (2007) SC905 and George Solomon v David Raim (2020) N8428. My view is that the public interest of finality of proceedings and due dispensation of justice is not adversely affected because of my findings that there is no default or delay by the plaintiff litigating this proceeding.
40. The interest of justice also requires that the plaintiff should not be driven from the judgement seat prematurely by summary disposal of the proceeding. This is where I must consider the cautious approach required by the Supreme Court in Lord and Company to consider if the proceeding should be disposed of. This requires consideration of the evidence. On that, I note from the evidence of Lucas Roika and Madelene Paulisbo that a conveyance transaction had occurred between the NHEL and the first defendants, and the first defendants expanded funds of K1.5million to NHEL for purchase of the property over a period of two years from date of executing the contract of 18 February 2016 to 09 May 2018, the settlement date.
41. I further note from their evidence that there appears to be a substantive legal issue about the legal status of the NHEL which
may affect its standing in the sale of the property to the first defendants.
It may be that the first defendant is a bona fide purchaser caught up with the legality issues but however that may be, it would be
proper to finally resolve these issues at trial or by settlement if parties are agreeable to that option.
42. I note from the first plaintiff's evidence that the plaintiffs are basing their interest to the property as long term tenants of the NHC, and that their lawyer had written to the third defendants lawyers Gagma Lawyers on 12 June 2023, putting them on notice that NHEL was liquidated by referencing Niugini Building Supplies Ltd v National Housing Estate Ltd (2020)SC1985.
43. Eitherway, there are serious legal issues to be tried which warrants this matter proceed to trial or submissions on this legal issue pursuant to Order 10 rule 21 NCR, if that is an option agreeable with parties.
44. Further I agree with Mr Sirigoi that deficiencies in pleadings can be cured by amendment. There is sufficient authority that deficiencies in the pleading can be cured by amendment, or the defendants can seek further and better particulars through discovery. See Papua Club Inc v Nusaum Holdings Ltd (2002) N2273.
45. In the end, the interests of justice are not adversely affected.
46. I therefore am not satisfied that a case for want of prosecution exists to summarily dispose of the substantive proceeding under Order 10 Rule 5 and/or Order 10 Rule 9A (15)(1) (a) and (2) NCR.
47. In terms of the competency argument under s5 of the Claims By and Against the State ('CBASA') the Supreme Court case of Keka v Yafaet (2018) SC 1673 provides sufficient authority to proceed against the National Housing Corporation in its own name and style.
48. The Supreme Court held in Keka v Yafaet the issue of whether the NHC came within the ambit of the State within s.5 CBASA, remained open in the absence of evidence about the commercial nature of its operations. Also refer to my unreported decision in WS 575 of 2017 Victor Joseph v Rui Rami and National Housing Corporation.
49. I therefore disregard the submissions on competency under Section 5 CBASA.
50. Given my reasons, it is proper to preserve the status quo and maintain the restraining orders until the final determination of the proceeding. The aspects of the District Court proceedings mentioned by Ms Yabone was also not properly put before me in evidence to appreciate the submission
Either way, I find that substantive interests of all parties are affected, and it is proper that the plaintiffs proceed with priority to setting the matter down for trial.
CONCLUSION
51. For the foregoing reasons, I refuse the defendants applications for summary dismissal under Order 10 Rule 40 (1)(b) NCR and summary disposal and the competency issues raised on Section 5 CBASA, on the basis of lack of evidence.
COSTS
52. Costs are discretionary and usually follow the event. Because the defendants have delayed in prosecuting the motions, costs of the application are awarded to the plaintiffs, to be paid on a party/party basis.
ORDERS
51. The formal Orders of the Court are:-
1) Leave is granted to the first applicants to withdraw their Notice of Motion filed on 14 March 2022.
2) The first and second applicants Notices of Motion filed on 04 July 2023 and 05 February 2020 are refused.
3) The plaintiff is to take such steps as is required by the National Court Rules to set the matter down for trial or liaise with the Registrar to schedule the matter for directions hearing at the next available directions hearing listings.
4) Parties are at liberty to consider any settlement options pending the trial of the matter.
5) Reasonable costs of this application are awarded against the defendants in favour of the plaintiffs on a party/party basis, to be taxed, if not agreed.
6) Time for entry of the orders is abridged to the date of settlement by the Registrar of the National Court which shall take place, forthwith.
Ruling Accordingly:
Sirigoi Lawyers: Lawyers for the First Plaintiffs.
Yabone & Co Lawyers: Lawyers for the First Defendants.
Gagma Legal Services: Lawyers for the Third to the Fifth Defendants.
[1] See also Kumagai Gumi Co Ltd v National Provident Fund Board of Trustees (2006) SC837 at [18].
[2] Order 10 rule 5 NCR.
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