Moime v National Housing Corporation [2012] PGSC 24; SC1191 (1 August 2012)

SC1191

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 146 OF 2009

BETWEEN:

REVEREND ANDREW MOIME
First Appellant

AND:

DAVID TINEMAU
Second Appellant

AND:

NATIONAL HOUSING
CORPORATION
First Respondent

AND:

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Kandakasi, Hartshorn & Kariko JJ.
2012: 3rd May,
: 1st August

Supreme Court Appeal – exercise of inherent jurisdiction considered – no reasonable cause of action disclosed in statement of claim – no purpose served by appeal being served

Facts:

The appellants appeal against a dismissal of a proceeding in the National Court. In the National Court proceedings, the plaintiffs (now appellants claimed that vacant possession of a property had not been given and that they had suffered loss as a consequence. The National Court dismissed the proceeding after having found that it was a nullity and void ab initio as the plaintiffs had failed to comply with s. 5 Claims By and Against the State Act (Claims Act) by not giving notice to the State, the second respondent, within time.

Held:

The National Court proceeding is frivolous as it is bound to fail. No useful purpose is served by this appeal being heard. Pursuant to the inherent jurisdiction of this Court, the appeal is dismissed.

Cases cited:

Don Polye v. Jimson Papaki & Ors (2000) SC637
Tamali Angoya & Ors v. Tugupa Association Inc & Ors (2009) SC978
Rimbao v. Pandan (2011) SC1098
Mendepo v. National Housing Corporation (2011) SC1169

Counsel:

Mr. D. Gonol, for the Appellants
Mr. P. Pera, for the First Respondent
Mr. W. Mapiso, for the Second Respondent

1st August, 2012

1. BY THE COURT: This is an appeal against a dismissal of a proceeding in the National Court.

2. In the National Court, the plaintiffs now appellants, claimed that vacant possession of a property had not been given and that they had suffered loss as a consequence. The National Court dismissed the proceeding after having found that it was a nullity and void ab initio as the plaintiffs had failed to comply with s. 5 Claims By and Against the State Act (Claims Act) by not giving notice to the State, the second respondent, within time. The trial judge also stated that if he was wrong in so ordering, he would have reached the same conclusion in relation to 'the other issues' pursuant to Order 12 Rule 40 National Court Rules.

3. The grounds of appeal in essence are that the trial judge erred in:

a) his determination of when the cause of action arose,

b) his determination that notice to the State had not been given in time,

c) dismissing the whole proceeding when s. 5 Claims Act does not apply to the first respondent, the National Housing Corporation,

d) determining that 'State' includes the National Housing Corporation,

e) dismissing the proceeding when the lack of a s. 5 notice had not been pleaded in a defence,

f) relying on hearsay evidence,

g) not giving parties an opportunity to make submissions on the court's inherent power to determine a proceeding,

h) considering issues not raised and commenting on pleadings without inviting submissions from counsel.

4. In the course of considering an appeal this court can exercise its inherent jurisdiction if it is of the view that the circumstances so warrant. In Don Polye v. Jimson Papaki & Ors (2000) SC637, the Court said:

"This Court always has had authority and of course jurisdiction to ensure the integrity of its process. Accordingly any proceedings not brought in good faith or which are frivolous, vexatious or oppressive can and will be struck out by a Court as an abuse of its process."

5. This passage was cited and approved in Tamali Angoya & Ors v. Tugupa Association Inc & Ors (2009) SC978 which commented that the exercise of this Court's authority can be by its own motion. The Court then, pursuant to its inherent jurisdiction, dismissed the appeal before it on a ground of appeal that was not specifically argued on the basis that there was an abuse of process. This Court in the case of Rimbao v. Pandan (2011) SC1098 also cited the passage in Don Polye (supra), and in Mendepo v. National Housing Corporation (2011) SC1169, this Court referred to these decisions with approval and stated that the exercise of this Court's authority can be by its own motion.

6. Upon hearing and considering this appeal, it is evident that the statement of claim does not disclose a reasonable cause of action against the defendants, the respondents to this appeal. The cause of action is based on a purported failure by the National Housing Corporation to give vacant possession of a property to the plaintiffs, the present appellants. The statement of claim however, pleads (grammatical errors disregarded) that the National Housing Corporation sold the subject property to the second appellant, Mr. Tinemau, who immediately sold it to the first appellant, Reverend Moime. Further, the only loss purportedly suffered that is pleaded as a consequence, was by Reverend Moime. There is no cause of action pleaded against the State.

7. We note that the issue whether the correct parties were being sued was referred to by counsel for the National Housing Corporation in the application before the trial judge, but counsel for Reverend Moime and Mr. Tinemau did not make submissions on that issue in their reply. In the hearing of the appeal before us, counsel for the National Housing Corporation and the State made submissions to the effect that no reasonable cause of action was pleaded given the state of the statement of claim. The issue of whether the correct parties were being sued and whether there was a reasonable cause of action was raised by this Court. Counsel for Reverend Moime and Mr. Timenau, while not conceding that no reasonable cause of action was pleaded, urged the court not to exercise its inherent jurisdiction and dismiss the appeal.

8. Given that on the pleading in the statement of claim, Mr. Timenau has sold the subject property, that any obligation to provide vacant possession to the current owner Reverend Moime, was an obligation of Mr. Timenau and that no cause of action is pleaded against the State; the National Court proceeding is bound to fail against the National Housing Corporation and the State, regardless of whether this appeal were to succeed. In our view the National Court proceeding is frivolous as it is bound to fail and no useful purpose is served by this appeal being heard. Pursuant to and in accordance with the authorities to which reference has been made, this appeal is dismissed. The appellants shall pay the respondents' costs of and incidental to the appeal.

____________________________________________________

Paulus M. Dowa Lawyers: Lawyers for the Appellants
National Housing Corporation In-House Lawyers: Lawyers for the First Respondent
Office of the Solicitor-General: Lawyers for the Second Respondent