Samuel Aiye Nema (Plaintiff/Cross-Defendant) and Rural Development Bank Limited (Defendant/Cross-Claimant) (2012) N5317

• Jurisdiction: Papua New Guinea
• Date: 27 July 2012
• Citation: (2012) N5317
• Docket Number: WS 391 OF 2012
• Court: National Court
• Year: 2012

Full Title: WS 391 OF 2012; Samuel Aiye Nema (Plaintiff/Cross-Defendant) and Rural Development Bank Limited (Defendant/Cross-Claimant) (2012) N5317

National Court: Hartshorn J

Judgment Delivered: 27 July 2012

Application to dismiss proceeding - O12 r40—whether plaintiff estopped from bringing proceeding—doctrine of res judicata—principles considered—whether same issue determined in previous proceeding

Cases cited:

Herman Gawi v. PNG Ready Mixed Concrete [1984] PNGLR 1974

Yama v. PNGBC Ltd (2008) SC922

1. HARTSHORN J: This is an application by the defendant the Rural Development Bank Ltd (RDB), to dismiss the proceeding pursuant to Order 12 Rule 40 National Court Rules, that RDB be granted an order for vacant possession of the plaintiff's property and that it be granted leave to issue a writ of possession.

2. The plaintiff Mr. Samuel Nema, commenced this proceeding in respect of his property. He seeks amongst others, an interim injunction to restrain RDB from selling the property, and that RDB's mortgage over the property be discharged.

3. RDB submits that pursuant to the doctrine of res judicata, Mr. Nema is estopped from bringing this proceeding as its cause of action is in essence the same as one in a previous proceeding between the parties that has finally been determined. This determination was first by the National Court which dismissed Mr. Nema's claim (WS 199/06) after a defended hearing and secondly by the Supreme Court which dismissed Mr. Nema's appeal from...