Kelo v Ipu [2020] PGSC 92; SC2003 (24 September 2020)

SC2003

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 71 OF 2019

MIKE KELO, on his own behalf and on behalf of the members of the Windi Peri Clan in the South Wiru Local Level Government Ward in Ialibu Pangia Electoral of Southern Highlands Province, whose names appear in the Schedule attached to the back of this appeal
Appellants

V

ANDREW EPERE IPU and BENNY ANDREW
First Respondent

AND
THE SECRETARY, DEPARTMENT OF FINANCE
Second Respondent

Waigani: Manuhu J, Makail J and Anis J
2020: 18^th June & 25^th September

SUBSTANTIVE APPEAL – Appeal against dismissal of proceeding on grounds of want of reasonable cause of action, frivolity and abuse of process – whether application of discretion was against the weight of evidence – whether the cause of action lacked merit, was frivolous and vexatious and amounted to abuse of the court process

Cased Cited:

Poko Kandapaki v. Enga Provincial Government (2015) SC1463
Kitogara Holdings Pty Ltd v. NCDIC [1988-89] PNGLR 346

Counsel:

Mr R Pariwa, for the Appellants
Nil representation for the First Respondent
Nil representation for the Second Respondent

25^th September, 2020

1. BY THE COURT: The appeal is against a decision of the trial Court made on 23 April 2019. The decision dismissed proceeding OS 125 of 2019 in its entirety. Appellant Mike Kelo was the plaintiff in that proceeding. He and the group that he represents (the appellants) were unhappy with that decision, so they filed this appeal.

BACKGROUND

2. The relevant background is this. In the National Court, the appellants sought various declaratory relief. We must say that we had difficulty following the counsel’s submissions on the relief and cause of action that had been pleaded or claimed in the National Court. So, for clarity, we will begin by setting out in part herein the relief that the appellants had sought in OS 125 of 2019:

1. Pursuant to Section 155(4) of the Constitution, and the inherent jurisdiction of the Honourable National Court:
   
   1. an Order in the nature of a declaration be made, declaring that the terms of the Court Order of 4^th August 2016, made by Judge Kandakasi (as he then was), in WS No. 804 of 2011; Andrew Epere Ipu & Benny Andrew v. SHPG & Others, relate to lands described as Portion 185C and Poriton 186C, and not Portion 184C, acquired by the government through outright purchase.
   2. an Order in the nature of a declaration be made, declaring that since the filing of WS No. 804 of 2011, extensions were done to the original Portion 184C, thus, creating new portions described as Portion 185C and Portion 186C.
   100. an Order in the nature of a declaration be made, declaring that the Plaintiffs are the rightful beneficiaries of land compensation or the purchase price of K530,000.00 referred to in the Court order of 4^th August 2016, in WS No. 804 of 2011, for Portion 185C, that piece of Land referred to as Windi Extension 2, land accommodating the Windi Council Chambers, in Pangia, Southern Highlands Province, as per and the valuation done by the Valuer General of 12^th April 2016 and the Windi Land Investigation Report done on 14^th April 2016, by a Nixon Kanema, the District Affairs officer/OIC – Land Matters Ialibu Pangia District.
   4. an Order in the nature of a declaration be made, declaring that the plaintiff are the rightful beneficiaries of land compensation or purchase price of K1,050,000.00 referred to in the Court order of 4^th August 2016, in WS No. 804 of 2011, for Portion 186C, that piece of land referred to as Windi Extension 3, land also accommodating the Windi Council Chambers, in Pangia, Southern Highlands Province, as per and the valuation done by the Valuer General on 12^th April 2016 and the Windi Land Investigation Report done on 14^th April 2016, by a Nixon Kanema, the District Affairs Officer/OIC – Land Matters, Ialibu-Pangia District.
   5. an Order in the name of a declaration be made, declaring that the First Defendants are beneficiaries of whatever payments, if any, for land compensation and the like, relating to Portion 184C, as per the Windi Land Investigation Report done in 2016, by a Nixon Kanema, the District Affairs officer/OIC – Land Matters Ialibu Pangia District.
   6. an Order in the nature of a declaration by made, declaring that the Defendants are only entitled to whatever cash crops they had that were on Portion 185C and Portion 186C that were destroyed and their reasonable costs incurred in pursuing WS No. 804 of 2011, and nothing more.
      
2. Pursuant to Section 155(4) of the Constitution, and this Court’s inherent powers, and Order 12 Rule 1 of the National Court Rules, an interim injunction be granted restraining the Second Defendant and its servants, employees, agents and associates from paying to the First Defendants the total sum of K2,500,000.00 ordered by the Honourable Court in WS. No. 804 of 2011 to be the final settlement figure for those proceedings, pending a final and complete resolution of this present proceeding.
   

3. The decision, which is the subject of the appeal, was made following 2 motions that had been made by the parties. The first was by the appellants seeking restraining orders, and the second was by the first respondents seeking to dismiss the proceeding. The trial Court, in handing down its decision ordered, and we quote in part, The proceeding are abuse of process and are dismissed.

4. The appellants’ claim in the National Court was this. They claimed that they had instructed the first respondents to act for them in proceeding WS 804 of 2011. In that proceeding, the National Court awarded K2.5 million to the first respondents, who were plaintiffs in that proceeding, as compensation and damages in relation to 2 blocks of land which is situated in Pangia in the Southern Highlands Province. The blocks of land were described as portions 184 and 186C in proceeding WS 804 of 2011. The appellants claimed in proceeding OS 125 of 2019 that the respondents were about to be paid the K2.5 million. They raised allegations or fears that the respondents may not distribute the money in the manner as they would prefer. As such, they filed proceeding OS 125 of 2019 and sought interim orders to stop the State from paying out the K2.5 million. As stated above, the said application was dealt with together with the respondents’ application to dismiss the proceeding.

GROUNDS OF APPEAL

5. The grounds of appeal commence at page 2 of the Appeal Book (AB). They are quite long. We, however, do not intend to repeat them in full here except to state a summary of each of the grounds.

6. In total, the appellants plead 6 grounds of appeal. Ground 3.6 has been abandoned. Grounds 3.1 and 3.2 are related. The appellants argue that the trial Judge erred in law when she found that their cause of action was a “claim” hence pursuant to s. 5 of the Claims By and Against the State Act 1996, a notice of claim was required and that no such notice was given by the appellants before they filed their proceeding at the National Court. They also argue that the respondents had no right to raise a s. 5 notice argument without the authority from the State. Under ground 3.3, they argue that the trial Judge erred in finding the proceeding frivolous, vexatious, lacked a reasonable cause of action and was an abuse of process, because they claim that they were and are the rightful beneficiaries to the K2.5 million that was awarded in proceeding WS 804 of 2011. Grounds 3.4 and 3.5 are related. The appellants argue that the trial Judge erred in dismissing the proceeding because her said decision “was not open on the evidence before her and was grossly against the weight of the evidence as the evidence did not support such a finding and decision.” The appellants also refer to an affidavit filed by the first respondents on 18 April 2019, and say that the said affidavit was short served and as such, they argue that it should not have been considered by the trial Judge in her decision; that the appellants’ rights to natural justice under s. 59 of the Constitution were breached when the trial Court also considered the said affidavit before it arrived at its final decision on 23 April 2019.

PRELIMINARY CONSIDERATION

7. We wish to address grounds 3.4 and 3.5 as a preliminary matter. We refer to the AB. The transcript of proceeding begins at page 158 of the AB. The transcript captures the trial Judge’s ex tempore ruling which was handed down at 10:13am on 23 April 2019. It did not, however, capture the actual hearing that occurred earlier on that day at 9:30am. Without the transcript of proceeding for the first part of the morning, we have nothing much really to use to assist us (i), to verify the facts alleged in the 2 grounds of appeal, and (ii) to proceed to and determine the 2 grounds of appeal.

8. The appellants, it seems, failed on their part to ensure that the said part of the transcript is provided before this Court for consideration. It is their appeal. They had the duty to ensure that the relevant transcripts of proceedings are contained in the AB ready for hearing. Justice Cannings, sitting as a single Supreme Court Judge, in refusing a slip rule application in the case, Poko Kandapaki v. Enga Provincial Government (2015) SC1463, stated:

13. Faced with such a vague and illusory statement of how the Court is alleged to have slipped, I can only conclude that the slip rule application does not have a strong chance of success. Mr Goava offered no written submissions and his oral submissions were unable to lend any more detail. Another point I must mention is that the appellants have not provided the Court with a transcript of the proceedings of 29 October 2013. So how can they expect to prove even an arguable case that the Court slipped? (Underlining ours).

9. Similarly, and in the present case, the missing part of the transcript of proceeding, makes it difficult or not possible for us to consider (i), the evidence that were adduced, (ii) the submissions that were presented by the parties, (iii), and the Court’s considerations or rulings if any, all of which could have occurred during that time. Without the information, we find grounds 3.4 and 3.5 unattainable, and so we dismiss them. We should end this with the remark that non-full disclosure of transcript of proceedings or delays in their provision or compilations, are valid grounds that may be relied upon by a party to summarily dispose an appeal.

ISSUES

10. In relation to the substantive appeal, the issues, in our view, are as follows:

(i) Whether proceeding OS 125 of 2019 did not lack merit, was not frivolous and vexatious and was not an abuse of process, and as such, whether the trial Judge erred in the exercise of her discretion in dismissing it?

(ii) Whether proceeding OS 125 of 2019 was not a “claim” as determined by the trial Judge and therefore whether the trial Judge erred in law when she found the cause of action to be a “claim” that would attract a s. 5 notice under the Claims By and Against the State Act 1996?

PROCEEDING WS 804 of 2011

11. The primary reason why the appellants commenced proceeding OS 125 of 2019 was this. They claimed to be beneficiaries or recipients of a judgment award of K2.5 million. The money was awarded in favour of the first respondents who were plaintiffs in proceeding WS 804 of 2011. As part of their plan, the appellants filed proceeding OS 125 of 2019 and tried to seek interim restraining orders against the State from paying out the money to the first respondents pending determination of their court proceeding.

12. The amended writ of summons and statement of claim of proceeding WS 804 of 2011, including the certificate of judgment for the payment of the K2.5 million, were adduced in evidence before the trial Court. The amended writ of summons of proceeding WS 804 of 2019 is located at page 59 of the AB. When we consider the said amended writ, we note that the first respondents, Andrew Epere Ipu and Benny Andrew, were named therein as first and second plaintiffs. The second significant fact is this. The first respondents had sued as individuals or in their personal capacities for damages they said were caused to their land. Nowhere in the amended writ had they pleaded that they were suing for or on behalf of anyone including the appellant Mike Kelo or the group that he represents. We also refer to the Certificate of Judgment dated 6 October 2016 which is located at page 95 of the AB. It reads in part:

I hereby certify that the Plaintiffs ANDREW EPERE IPU and BENNY ANDREW, c/- Ame Lawyers, PO Box 1874, Port Moresby, National Capital District, on the 4^th day of August 2016 did obtain a judgment against the Defendants in the National Court at WAIGANI in their favour and that by such judgment that total sum of K2,500,000.00 being for the substantive claim inclusive of interests and costs.

13. These facts were vital and, in our view, would have put into serious question or jeopardy (i), the standing of the appellants, (ii), the merit of their claim, (iii) and the likelihood or possibility that their court proceeding was an abuse of process. Firstly, the appellants were not parties nor beneficiaries in proceeding WS 804 of 2011 as they had alleged in proceeding OS 125 of 2019. And the judgment for the sum of K2.5 million in proceeding WS 804 of 2011 was granted in favour of the first respondents by a court of competent jurisdiction which is the National Court. And proceeding WS 804 of 2011 is complete in the sense that there has not been an appeal filed, or a review filed against the decision of the Court.

14. In our view, it would therefore be blatant or gross abuse of process, for someone or any person for that matter, to commence a separate National Court proceeding and assert interest or beneficiary interests in relation to a final finding or findings of another National Court of competent jurisdiction, in an attempt to claim the fruits of judgment therein if these persons were not parties to that proceeding. This type of action should be condemned in the strongest possible terms, and that should extend to the lawyers involved therein as well. The Court processes are clear in such situations. We have pointed these out to counsel for the appellant at the hearing, that is, of the due processes that were or are available which should have been pursued by the appellants. Such processes include appeal or review against the decision of the Court in proceeding WS 804 of 2011. As for appeals, we note that they are not restricted to the parties to a proceeding. This Court in Kitogara Holdings Pty Ltd v. NCDIC [1988-89] PNGLR 346, held:

Section 17 of the Supreme Court Act operates so as to provide a right of appeal to any "person" whose interests are affected by or who is aggrieved by the order of the court and who might have been joined as a party to the proceedings.

15. Or if for example, there had been an agreement reached between the appellants and the first respondents before the commencement of proceeding WS 804 of 2011, then perhaps proceedings may be commenced based on such an agreement. The appellants herein have not done any of those and had decided to file proceeding OS 125 of 2019 in the manner as they had done.

16. At page 160 of the AB, the trial Judge stated, and we read in part:

Court notes that the plaintiff is not a party in WS 804 of 2011, whether or not he has got sufficient interest in pursuing this matter that is another challenge. However, in hearing Mr Ame for the first defendant, this court would agree that if there were any issues with regard to the valuation and the payment of compensation for land that have been compulsorily acquired by the State, the party if he is an interested party and he has go sufficient interest in the proceedings is now barred from filing an appeal and has not filed an appeal nor a judicial review in relation to the decision of the National Court of 4 August 2016.

Given those bases, this court is minded to make a ruling that the proceedings as they are, are misconceived as abuse of the court’s process. The plaintiffs do not have an interest in these proceedings if at all, they have not shown by way of any specific evidence that they are parties to these proceedings and that they will suffer any consequences or prejudice in relation to a judgment that has been granted on 4 August 2016 to the first defendant.

17. We have read the ex tempore decision of the trial Judge. We do not see or find that her Honour misapplied the exercise of her discretion in dismissing the proceeding. We find no valid reason to differ from her Honour’s decision of 23 April 2019. We uphold the above findings and decision of the trial Court.

18. Given our decision, it would be a futile exercise if we were to proceed with the next issue. We propose to dismiss the appeal in its entirety for the above reasons.

COST

19. The appeal has not been challenged. Under the circumstances, we will order the parties to bear their own costs.

ORDERS

20. We make the following orders:

1. The appeal is dismissed in its entirety.
   
2. Parties shall bear their own costs of the appeal.
   
3. Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

____________________________________________________________
Public Solicitor: Lawyers for the Appellants
Nicholas Tame Lawyers: Lawyers for the First Respondents