SC2428

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 32 OF 2021

GLOBAL CUSTOMS & FORWARDING LIMITED
Appellant

AND
BENJAMIN SAMSON AS THE SECRETARY FOR DEPARTMENT OF LANDS AND PHYSICAL PLANNING
First Respondent

AND
THE DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

AND
EAST BOROKO CHRISTIAN FELLOWSHIP INC
Fourth Respondent

Waigani: Hartshorn, Kassman and Berrigan JJ
2023: 26th June and 28th July

APPEAL – JUDICIAL REVIEW – Res judicata – Abuse of process – Principles applying - Mandamus – Discretion in grant of remedy – Appeal dismissed. 

Cases Cited:
Papua New Guinean Cases

GR Logging Ltd v Dotaona (2018) SC1690
Titi Christian v Rabbie Namaliu (1996) SC1583
Telikom (PNG) Ltd v. Rava (2018) SC1694
Anderson Agiru v. Electoral Commission and the State (2002) SC687
Pruaitch v Manek (2019) SC1884
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Kalinoe v Paul Paraka Lawyers (2014) SC1366 
Taka v Amean (2006) N3070
Independent State of Papua New Guinea v Namah (2020) SC2037
Amet v Yama (2010) SC1064

Overseas Cases

Henderson v Henderson (1843) 3 Hare 100
Greenhaihg v Mallard [1947] 2 All ER 255
Johnson v Gore Wood & Co (a firm) [2002] AC 1 
Hunter v. Chief Constable of the West Midlands Police and Others [1982] AC 529
Rogers v the Queen [1994] HCA 42

References Cited

Section 74 of the Land Act
Section 33 of the Land Regulation Act

Counsel

Mr M. Tamutai, for the Appellant
Mr E. Sasingian, for the First Respondent
Mr K. Kipongi, for the First and Second Respondents 
Mr G. Kaore, for the Fourth Respondent 

DECISION ON APPEAL

28th July, 2023

1.	BY THE COURT: This is a decision on an appeal against the decision of the National Court which dismissed an application for mandamus. 

2.	The appellant sought to compel the Secretary for the Department of Lands and Physical Planning “to gazette and publish in the National Gazette its name as the successful applicant over State Lease Section 378 Allotment 13 Hohola, NCD and to accordingly effect processes for the grant of [the] State Lease as stipulated under relevant provisions of the Land Act 1996”.  

3.	There is no dispute that the proceedings concern Section 378 Allotment 1.  The appellant seeks to have issued to it a State Lease for Section 378 Allotment 13 which it says was subdivided out of Allotment 1. 

4.	The learned trial judge dismissed the application on the basis that it was res judicata and an abuse of process and made further other orders, including: 

(1)	declaring that State Lease Section 378 Allotment 1 is in existence and valid;
(2)	the fourth respondent is the legal proprietor of State Lease Section 378 Allotment 1;
(3)	the purported subdivision of Section 378, Allotment 1 was contrary to ss 107 and 130 of the Land Act and hence declared null and void and of no effect;
(4)	the purported State Leases described as Section 378, Allotment 12 and 13 are nullified;
(5)	the PNG Land Board’s decision awarding the State Lease Section 378 Allotment 13 is declared null and void and quashed;
(6)	the Minister’s decision to dismiss the appeal and uphold the Land Board’s decision is quashed;
(7)	The appellant is restrained from filing any further proceedings in the National Court challenging the fourth respondent’s title to Section 378 Allotment 1 rehashing the same arguments and based on the same set of facts.

5.	The appellant seeks to have all orders by the lower court quashed and an order for mandamus compelling the first respondent to publish its name as the successful applicant for the State Lease described as Section 378 Allotment 13 Hohola (Gerehu), NCD in the National Gazette. 

GROUNDS OF APPEAL 

6.	There are multiple grounds of appeal but essentially the appellants contend that the National Court erred in: 

a) finding that the proceedings were res judicata; 
b) refusing to grant judicial review and mandamus when s 74 of the Land Act is in mandatory terms; and 
c) exceeding its powers to make orders quashing various administrative decisions not the subject of the review application; or 
d) alternatively, the decision was so unreasonable that no reasonable tribunal could have come to the same conclusion when the PNG Land Board and the Minister were not parties to the proceedings and when the title for State Lease Section 378 Allotment 1 was issued to a non-existent entity and was a sham. 

SUBMISSIONS
 
7.	The appellants submit that s 74, Land Act is in mandatory terms and the Secretary was obliged to publish its name as the successful candidate in the gazette. The trial judge erred in taking into account other considerations when s 74 excludes the principles of natural justice. The trial judge erred in quashing the administrative decisions of the Land Board and the Minister when those decisions were not the subject of the judicial review before her.  The trial judge exceeded her jurisdiction by imposing her own decisions with respect to those matters and failed to review the decision-making process of the Secretary in failing to comply with s 74 of the Land Act which was the question before her. The grant of a lease is a matter of the Minister’s discretion. The trial judge made orders against the Minister when he was not joined to the proceedings.  The trial judge misdirected herself in finding that the proceedings were res judicata when the decision of the Land Board and the Minister were not the subject of any prior proceedings, there was no decision nullifying those decisions and the issue raised as to the process of the grant of the lease was entirely new. The appellant was denied the right to be heard in respect of the orders made.  The decision of the trial judge was so unreasonable that no reasonable tribunal could have come to the same conclusion when the fourth respondent’s title to Section 378 Allotment 1 is a sham to which the first respondent was a party. 

8.	The respondents submit that there was no error. The issues in dispute had been determined by Cannings J in OS JR 71 of 2020 and earlier proceedings. Following the decision in OS JR 71 of 2020 the National Court in OS 105 of 2020 dismissed a similar application for being res judicata.  The orders made by the trial judge affirming the title of the fourth respondent to Section 378 Allotment 1 and quashing the decisions of the Land Board and Minister were consequential orders.  

BACKGROUND 

9.	There is no dispute that the proceedings concern land the subject of State Lease Section 378, Allotment 1 (Hohola) Gerehu.

10.	The tender process for that lease commenced in 1999 and was the subject of various proceedings before the Lands Board and appeals to the Minister for Lands. 

11.	The appellant has never been the registered title holder to Section 378 Allotment 1, nor was it one of the applicants for the said lease.  It nevertheless claims it received approval from the NCD Physical Planning Board in June 2012 to subdivide Section 378, Allotment 1 into two Allotments, 12 and 13. The titles for those allotments are yet to be created. 

12.	The title to Section 378, Allotment 1 was, however, registered to the fourth respondent on 5 October 2012.  

13.	The appellant contends that the title is defective for various reasons, including on its face and due to the subject land already being subdivided. The appellant says that it became aware in September 2014 that the title was registered in the name of an unregistered entity. It complained to the Registrar of Titles some three years later in September 2017, following which, on 9 February 2018, the Registrar of Titles cancelled the title on the basis that the fourth respondent was an “unregistered entity”.  On 1 August 2019 the Registrar of Titles restored title to the fourth respondent upon being satisfied that the cancellation was made in error. 

14.	In the meantime, on 17 July 2018, a lease over Section 378, Allotment 13 was advertised for tender in the gazette.  The appellant was notified on 14 November 2018 that it was the successful applicant. Another applicant not a party to these proceedings appealed to the Minister against the decision of the Land Board. 

15.	On 8 August 2019 the Minister dismissed the appeal and affirmed the appellant as the successful applicant.  

16.	On 2 November 2020 a gazettal notice was published setting out the outcome of various appeals against the Land Board’s recommendations. It did not contain the outcome of the appeal concerning the lease for Section 378 Allotment 13.  

17.	Against that background, the appellant brought various proceedings at different times in the National Court concerning Section 378, Allotment 1. 

18.	These include OS No 715 of 2014 the nature of which is unclear on the material before us. It was dismissed for reasons which are also not clear. 

19.	In WS 756 of 2017 the appellant claimed that the title issued to the fourth respondent in 2012 was defective for reasons which are again not clear.  On 25 February 2019 Polume-Kiele J dismissed the claim as an abuse of process on the basis that it failed to disclose a reasonable cause of action, noting that the appellant’s contention that it was the owner of the land was without legal basis, and that the appellant was in effect seeking to challenge the fourth respondent’s title which should have been brought by way of an appeal against the grant of title. 

20.	On 4 March 2020 the appellant sought leave to commence OS JR 71 of 2020, for which leave was granted to review the decision of the Registrar of Titles to restore the title to Section 378, Allotment 1 to the fourth respondent on 1 August 2019. It sought: a) a declaration that the decision restoring the cancelled title to the fourth respondent was ultra vires; b) a declaration that the fourth respondent acted fraudulently in obtaining restoration of the title; c) a declaration that the restored title was null, void and of no effect; d) an order in the nature of certiorari quashing the title; e) an order in the nature of mandamus compelling the revocation or cancellation of the restored title to Section 378 Allotment 1 to the fourth respondent; f) a declaration that the appellant had followed all procedures required under the relevant acts to acquire title to the said property and therefore is the interested and rightful legal applicant to acquire title under the currently processed rezoning and subdivision which is due for registration of title to the plaintiff and before the office of the Governor General for gazettal purposes; and g) an order that the Register of Titles allow and give effect to the process of registration of the title to the appellant as allowed for and required under the Land Act, 1996 and the Land Registration Act, 1966.

21.	This application for judicial review was dismissed by Cannings J on 18 June 2020 following a trial. Cannings J found that there was no credible evidence to support the appellant’s contention that Section 378 Allotments 12 and 13 now exist and are the subdivided Allotment 1.  He found that pursuant to s 161 of the Land Registration Act the Registrar of Lands had power to restore a lease which he has previously cancelled.  Furthermore, there was no credible evidence of collusion or fraud, actual or constructive fraud in the making of the decision of the Registrar which appeared on the evidence to have been made in good faith after the Registrar had made appropriate enquiries and had been satisfied that the decision he had made in 2018 to cancel the title had been made in error.  As Cannings J observed, s 161(2)(b) provides that “The register or other duplicate of title so corrected has the same validity and effect as if the error had not been made except as regards an entry made in the register before the time of correcting the error”. 

22.	At some point thereafter the appellant brought OS 105 of 2020 seeking orders including a declaration that Section 387, Allotment 1 was subdivided into Allotments 12 and 13. It claimed that Section 378, Allotment 1 was never in existence, including when it was issued to the fourth respondent in September 2012, or then restored in August 2019.  

23.	On 22 December 2020 Kandakasi DCJ dismissed the proceedings as an abuse of process by reason of res judicata and ordered that the appellant was restrained from issuing any further proceedings until the respondents’ costs in that and earlier proceeding had been settled. 

24.	On 7 January 2021 the appellant brought the proceedings the subject of this appeal against the first, second and third respondents.  Those respondents filed a motion to have the proceedings dismissed for being res judicata, non-compliant with the costs order in OS 105 of 2020, and disclosing no reasonable cause of action, frivolous, vexatious and an abuse of the court process. 

25.	On 7 July 2021 the fourth respondent, upon becoming aware of the proceedings, sought to join the proceedings and to dismiss them for res judicata. 

26.	A trial was heard on 21 February 2022 following which the trial judge found that the appellant was seeking to use the proceedings to validate the purported subdivision.  There was no evidence to establish that the land was in fact subdivided. The appellant was not the title holder of Section 378 Allotment 1 at the time the application for subdivision was made by it and any subdivision, if made, was therefore unlawful for failing to comply with ss 107 and 130, Land Act. The first respondent’s decision not to publish the name of the appellant was in line with the decisions of the National Court which confirmed the fourth respondent’s title and his genuine belief that publication would lead to the creation of a second title over the same piece of land.  

CONSIDERATION

27.	When the trial judge dismissed the proceedings that was the end of the matter before Her Honour. There was no proceeding remaining in which Her Honour could have made further orders. To the extent that Her Honour made those further orders, we are of the view that she fell into error. 

28.	The question remains, however, whether the trial judge erred in refusing the order for mandamus and dismissing the case on the basis that it was res judicata or an abuse of process.  To the extent that the respondents did not raise that the trial judge fell into error in not dismissing the National Court proceeding as an abuse of process, this Court of its own volition may consider whether the National Court proceeding and this proceeding is an abuse of the Court process: Independent State of Papua New Guinea v Namah (2020) SC2037; Amet v Yama (2010) SC1064, amongst others.

29.	Section 74 of the Land Act is in mandatory terms. It provides that the Departmental Head shall publish the name of the successful applicant for a State Lease in the National Gazette, (emphasis ours):

PUBLICATION OF NAMES OF SUCCESSFUL APPLICANTS, ETC., IN THE NATIONAL GAZETTE.

The Departmental Head shall publish in the National Gazette–

(a) the name of the successful applicant for each State Lease, together with particulars of the lands to be leased to him; and

(b) in respect of that State Lease and those lands–
(i) the name of the applicant considered the second-choice successful applicant; and
(ii) the name of the applicant considered the third-choice successful applicant,

to whom a Letter of Grant may be forwarded in accordance with Sections 75 and 79.

30.	The doctrine of res judicata was discussed in detail in GR Logging Ltd v Dotaona (2018) SC1690.  

31.	The doctrine provides that where a decision is pronounced by a judicial tribunal over a particular matter, that same matter cannot be reopened by the same parties bound by the decision, save on appeal. There are essentially two types. Cause of action estoppel operates to prevent a cause of action being raised or challenged by either party in subsequent proceedings where the cause of action in the later proceedings is identical to that in the earlier proceedings, is between the same parties and involving the same subject matter.  Issue estoppel arises where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided, but, in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue. 

32.	The Court in GR Logging Ltd, supra, considering O’Neill v Eliakim, and earlier Supreme Court authorities including Titi Christian v Rabbie Namaliu (1996) SC1583), said at [56] that the questions to be considered in determining whether a proceeding is res judicata are whether in respect of an earlier decision: 

(1) the decision was judicial;
(2) the decision was pronounced;
(3) the decision-maker had jurisdiction over the parties and the subject matter;
(4) the decision was:
		a. final; and
b.	on the merits;
(5) the original decision determined a question that was raised in the present litigation; and
(6) the parties are, or are effectively, the same.

33.	Where a case does not fall within the rules relating to res judicata, the court may nevertheless exercise its discretion under its general inherent jurisdiction to prevent litigation that amounts to an abuse of process where the issue could and should have been resolved in earlier proceedings for the purpose of establishing or negativing the existence of a cause of action.  As observed in GR Logging at [50] (emphasis ours):  

“The purpose of the principle of res judicata is to support the good administration of justice in the interests of the public and the parties by preventing abusive and duplicative litigation, and its twin principles are often expressed as being the public interest that the courts should not be clogged by re-determinations of the same disputes; and the private interest that it is unjust for a man to be vexed twice with litigation on the same subject matter. A distinction is often made between the doctrine of res judicata and the wider rule (alternatively seen as an extension of res judicata that precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised, in the earlier ones for the purpose of establishing or negativing the existence of a cause of action ('abuse of process'), although the policy underlying both principles is essentially the same. (Halsbury’s Laws of England (2015) Volume 11 Civil Procedure paragraph 1603)(citations omitted)”

34.	Parties are expected to bring their whole case to the court and will not in general be permitted to re-open the same litigation in respect of a matter which they might have brought forward but did not whether from negligence, inadvertence or even accident:  Henderson v Henderson (1843) 3 Hare 100.  The abuse in question need not, however, involve the re-opening of a matter already decided in proceedings between the same parties but may cover issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of process of the court to allow new proceedings to be started in respect of them: Greenhaihg v Mallard [1947] 2 All ER 255. That is not to say that the fact that a matter could have been raised in earlier proceedings will necessarily render later proceedings abusive.  The question is whether in all the circumstances a party's conduct is an abuse: there should be a broad merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case:  Johnson v Gore Wood & Co (a firm) [2002] AC 1 at 31; Halsbury’s Laws of England (2020) Volume 11 at [1617]. 

35.	Furthermore, the circumstances in which an abuse of process may arise are not closed. The court has an inherent power to prevent the misuse of its procedure where it would be manifestly unfair to a party to litigation before it or would otherwise bring the administration of justice into disrepute among right-thinking people: Telikom (PNG) Ltd v. Rava (2018) SC1694 at [21] adopting Lord Diplock in the House of Lord’s decision of Hunter v. Chief Constable of the West Midlands Police and Others [1982] AC 529 (emphasis ours):

‘It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied.”

36.	In short, 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: Anderson Agiru v. Electoral Commission and the State (2002) SC687. See also Pruaitch v Manek (2019) SC1884 at [12] to [29].

37.	Although the categories of abuse of process remain open, abuses usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute: Rogers v the Queen [1994] HCA 42; adopted in Pruatich at [21].

38.	When determining whether to exercise its power to prevent an abuse of process, the Court should have regard to the full facts and circumstances of the case, the prejudice to each of the parties and the need for public confidence in the administration of justice: Pruaitch at [22].

39.	Returning to the present case, the trial judge erred in finding that the proceedings before her were res judicata.  Whilst the parties in those and the prior judicial proceedings were the same, but for the decision in OSJR 71 of 2020 of 25 June 2021, the decisions in the other proceedings were not final and on the merits.  The decision in OSJR 71 of 2020 was final and on the merits but was not concerned with the question of publication under s 74, Land Act.  

40.	Compliance or otherwise with s 74 of the Land Act was not a matter that necessarily should have been raised in OSJR 71 of 2020.  We find no error, however, in the dismissal of the proceedings for being an abuse of process for other reasons.  

41.	The proceedings effectively sought to overcome the decision in OSJR 71 of 2020 which expressly found no evidence of subdivision, or fraud, and affirmed the fourth respondent’s indefeasible title to Section 378, Allotment 1.  With respect to the issue of fraud it should be noted that it is alleged that the first respondent was a party to fraud both at the time the title was issued to the fourth respondent in 2012 and again when it was restored in 2019. 

42.	It is apparent from the affidavit material and the submissions both in the lower court, and again before us, that the appellant contends that the title held by the fourth respondent was defective as from 2012 because it was registered in the name of a non-legal entity, that it was therefore permissible for the appellant to seek subdivision and that the land has since been subdivided. 

43.	Furthermore, regardless of the gazettal notice of 20 December 2020, the proceedings were brought some 16 months after the Minister’s decision dismissing the appeal.  There is scant evidence as to what steps the appellant took, if any, following that decision until the filing of the proceedings.  The appellant chose to pursue OSJR 71 of 2020 instead.  

44.	In short, the appellant claims to have become aware of defects in the fourth respondent’s title in 2014.  It has had ample time to challenge the title since then. Any such attempts taken in 2014 and 2017 were unsuccessful, albeit they were not heard on the merits. It did not seek to appeal those decisions or bring alternative substantive proceedings at that time. Instead, it sought to challenge the restoration of the title to the fourth respondent in 2019 via OSJR 71 of 2020.  When that failed it did not appeal the decision but brought further proceedings before the National Court in OS 105 of 2020 seeking declarations as to the existence of the purported subdivisions. When those proceedings were dismissed it relied on the same affidavit filed in those proceedings to institute this case.

45.	There is no dispute that the purpose of the proceedings was to compel the first respondent to take administrative steps which would lead to the grant of a title over land the subject of Section 378, Allotment 1 in favour of the appellant. The appellant maintains that this Court should concern itself only with the requirements of s 74, Land Act, regardless of the fact that this will result in two titles in place over at least part of the same piece of land.

46.	We do not agree. The appellant should not be permitted to use the judicial process to compel administrative action which will result in the grant of a title over land to which the fourth respondent has registered title and which the appellant has tried but failed to challenge in other proceedings, on several occasions, since 2014. The latest proceedings are vexatious and oppressive in all the circumstances and constitute an abuse of process.  

47.	Furthermore, whilst s 74, Land Act is in mandatory terms, mandamus is an equitable remedy and, like all such relief, it remains discretionary: Mision Asiki v Manasupe Zurenuoc (2005) SC 797; Kalinoe v Paul Paraka Lawyers (2014) SC1366 at [36]: 

"It is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for a remedy. In judicial review  proceedings the remedies to be granted are at the discretion of the court."
 
48.	As observed by Injia DCJ in Taka v Amean (2006) N3070 at [14] (emphasis ours):
“The prerogative Writ of Mandamus is an equitable remedy and it is very much discretionary. Mandamus may be refused if its grant would cause administrative hardships. A case on point cited by Mr Steven is R v Commissioner Public Service Commission; Ex parte Killeen (1914) CLR 56 at 590. The High Court in that case, per Griffith CJ said at p.588:
"A mandamus will in general be granted to a public officer to do an act which he is by law bound to do, and which is a necessary preliminary to the exercise or enjoyment of some right by an individual. But the writ is discretionary, and will not be granted if it would be futile.””
49.	In determining whether to grant an equitable remedy the Court should consider both the conduct of the party applying and the effect of the relief sought.  The following summary in Halsbury’s Law of England, Volume 61A (2018) at 109 with respect to the latter is helpful (citations omitted):

“Factors which may be relevant include whether the grant of the remedy is unnecessary or futile, whether practical problems, including administrative chaos and public inconvenience, would result, the effect on third parties, and whether the form of the order would require close supervision by the court or be incapable of practical fulfilment. A remedy may be refused when an alternative remedy to a claim for judicial review, such as an appeal or an internal complaints procedure, is or was available but was not used.

The court has an ultimate discretion whether to set aside decisions and may decline to do so in the public interest, notwithstanding that it holds and declares the decision to have been made unlawfully. The demands of good public administration may lead to a refusal of relief. However, there is a public interest in establishing that action taken by a public body is invalid and there needs to be good reason for not granting an appropriate remedy; thus, in some instances, the courts may refuse to quash a decision where there is good reason to do so but may grant a declaration that there has been a breach of the relevant principles of public law.” 

50.	In our view, quite apart from the appellant’s conduct, the order sought by the appellant is not in the public interest, regardless of the requirements of s 74, Land Act. 
51.	It would result in the creation of a second registered title over at least part of the same piece of land.  This would cause administrative chaos, prejudice the rights of the fourth respondent and have the potential to prejudice any unsuspecting third party, who might deal with the second title.

52.	Moreover, there can be no second title. 

53.	The appellant relies on Mudge and Mudge v Secretary for Lands, The State and Delta Developments Pty Ltd [1985] PNGLR 387 for other purposes but it is also relevant to the issue of discretion. 

54.	In that case the lower court found that there had been breaches of the provisions of the Land Act in respect of the granting of a State lease, including that the lease should not have been granted before rezoning was gazetted and that written notice should have been given to Mudge of the application for lease as he was a person who, to the knowledge of the chairman, was interested in the application. Despite the irregularities in the application process, the court refused to make orders forfeiting the lease which had already been registered under the provisions of the Land Registration Act (Ch No 191).  The Supreme court dismissed the appeal agreeing that regardless of the irregularities, Delta obtained indefeasible title upon registration.   

55.	The case does not assist the appellant. The fourth respondent already holds indefeasible title, free from all encumbrances pursuant to s 33(1), Land Registration Act, subject to certain exceptions which do not apply here. The appellant has had ample time to challenge it and has failed.  As s 33(2), Land Registration Act makes clear, the operation of s 33(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 the Act, might be held to be paramount or to have priority.  It follows that there would be no utility in directing the first respondent to take steps towards issuing a title over the same land for which the fourth respondent already holds title.   

56.	The appeal against the refusal of the lower court to grant mandamus is dismissed. 

SUMMARY 

57.	Having found that the trial judge fell into error in granting the orders referred to in paragraphs 4(1) – (7) hereof, we have nevertheless proceeded to determine the application for mandamus that was before the trial judge pursuant to sections 6 and 16, Supreme Court Act.  In so doing we have found that the proceedings before the trial judge were an abuse of process for the reasons that we have already given.

ORDERS

(1)	This appeal and the proceedings OS(JR) 1 of 2021 Global Customs & Forwarding Ltd v Benjamin Samson and Others and SCM 32 of 2021 Global Customs & Forwarding Ltd v Benjamin Samson and Others are both dismissed as they are an abuse of the processes of the Courts.  

(2)	The costs of the appeal and the said National Court proceeding shall be paid by Global Customs & Forwarding Ltd to all of the respondents. 

________________________________________________________________
Tamutai Lawyers: 	Lawyer for the Appellant
Sasingian Lawyers:	Lawyer for the First Respondent
Solicitor General:	Lawyer for the Third Respondent
Kaore Lawyers:   	Lawyer for the Fourth Respondent