Menapo Tulia and Others v Eke Lama and Others (1998) N1824

• Jurisdiction: Papua New Guinea
• Judge: Background
• Judgment Date: 24 July 1998
• Court: National Court
• Citation: (1998) N1824
• Year: 1998
• Judgement Number: N1824

National Court: Sawong J

Judgment Delivered: 24 July 1998

N1824

PAPUA NEW GUINEA

(In the National Court of Justice)

WS No. 1112 OF 1995

BETWEEN:

MENAPO TULIA AND OTHERS

- Plaintiff -

AND:

EKE LAMA AND OTHERS

- Respondents -

GOROKA: SAWONG J

1998: 10, 24 JULY

Practise and Procedures - Res judicata - Estoppel - claim for damages for raid on village by villagers from another village - separate causes of action -

Cases cited:

WS No. 968 of 1993 - undated judgement by Salika J

Counsels:

Mr Zimike, for the Plaintiffs

Mr Kumura, for the Respondents

24 July 1998

SAWONG J: In this action the plaintiffs bring a representative action on behalf of the members of the Wiliri and Awari tribes and on their own behalfs, for damages for destruction and loss of various properties, loss of production from business and mental distress. The alleged destruction were said to have been committed by the 11 defendants named in the Writ of Summons.

By a notice of motion the defendants move that whole of the proceedings be dismissed on the basis of either O. 11 R. 7 or O. 12 R. 40 of the National Court Rules. These rules are in the following terms.

O. 11 R. 7

“7. Setting Aside

(1) The Court may, on motion by the person named in a summons, set aside the summons wholly or in part.

(2) Notice of a motion under Sub-rule (1) must be filed and served on the party on whose request the summons was issued.”

O. 12 R. 40

“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) 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.

(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).”

Essentially Mr Zimike and Mr Kumura relied on the principles of res judicata and or equitable estoppel. The essence of their submissions was that whole claim or cause of action had been dealt with by the National Court previously and therefore the present proceedings is an abuse of the court process. There they relied on the undated decision of Salika J in WS 968 of 1993.

In that case (WS 968/93) the same plaintiff, as in the current proceedings, brought representative action against Mr Dick Mune, three policemen, Mr Eke Lama and the State. Mr Lama was the fifth defendant in that proceeding. On the application of the plaintiffs, he was removed from that proceedings as a defendant. In the current proceeding he has now been named as First Defendant. The cause of action in WS 968 and the current cause of action arose from the same incident.

Before I turn to the arguments and to the consideration of the decision in WS 968, I think it is appropriate to set out the proper and appropriate legal principle on the issue of whether the current proceedings is res judicata or not.

Mr Zimike and Mr Kumura (who appeared as a friend of the court) submitted that the principles of res judicata was applicable in the current proceedings. Considerable reliance was placed on paragraphs 1528 and 1536 of Halsbury’s Laws of England, 4th edition to support their arguments.

In Halbury’s Laws of England (4th ed.), vol. 16, para 1528, under the sub heading “Essentials of res judicata” the editor says:

“In order that a defence of res judicata may succeed it is necessary to show not only that the cause of action was the same but also that the plaintiff had...