Amos Ere v National Housing Corporation

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Hartshorn J
• Judgment Date: 27 September 2016
• Citation: (2016) N6515
• Judgment Number: N6515
• Year: 2016

Full : OS 261 of 2016; Amos Ere for himself and on behalf of all Tenants and Occupants of Tokara NHC Hostel Section 227 Allotment 192, Hohola, National Capital District as listed under Schedule “A” of the Originating Summons v National Housing Corporation and Aees Real Estate Limited (2016) N6515

National Court: Hartshorn J

Judgment Delivered: 27 September 2016

N6515

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 261 of 2016

BETWEEN

AMOS ERE

for himself and on behalf of all Tenants and Occupants of Tokara NHC Hostel Section

227 Allotment 192, Hohola, National Capital District as Listed under Schedule “A” of the Originating Summons

Plaintiff

AND

NATIONAL HOUSING CORPORATION

First Defendant

AND

AEES REAL ESTATE

LIMITED

Second Defendant

Waigani: Hartshorn J.

2016: 9th & 27th September

Application to Dismiss Proceeding

Cases cited:

Ainsworth v. Criminal Justice Commission [1992] HCA 10; (1991-1992) 175 CLR 564

Bernard Kosie v. John Kapi Natto (2016) unreported

SCA 55/15 delivered 6/5/16

Bernard Kosie v. John Kapi Natto (2015) N6263

Dr. Onne Rageau v. Kina Finance Ltd (2015) N6175

Eliakim Laki v. Maurice Alaluku, Secretary Department of Lands [2000] PNGLR 392

Independent State of Papua New Guinea v. Central Provincial Government (2009) SC977

Kiee Toap v. The State (2004) N2731, N2766

Kerry Lerro v. Stagg (2006) N3050

Louis Medaing v. Ramu Nico Management (MCC) Ltd (2010) N4158

Michael Gene v. Hamidian Rad [1999] PNGLR 444

Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007

Nae Ltd v. Curtain Bros Papua New Guinea Ltd (2015) N6124

National Fisheries Authority v. New Britain Resources Development Ltd (2009) N4068

Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425

Pius Pundi v. Chris Rupen (2015) SC1430

Placer Dome (PNG) Ltd v. Yako (2011) N4691

PNG Forest Products Pty Ltd v. The State [1992] PNGLR 85

Puri Ruing v. Allan Marat (2012) N4672

Rabaul Shipping Ltd v. Rupen (2008) N3289

Simon Mali v. Independent State of Papua New Guinea [2002] PNGLR 548

Siu v. Wasime Land Group Incorporated (2011) SC1107

Tigam Malewo v. Faulkner (2007) N3357

Telikom (PNG) Ltd v. ICCC and Digicel (2008) SC906

Takori v.Yagari & Ors (2008) SC905

Tigam Malewo v. Faulkner(2009) SC960

United States of America v. WR Carpenters (Properties) Ltd [1992] PNGLR 185

Wan Global Ltd v. Luxurflex Ltd (2012) SC1199

Wilfred Mamkuni v. Ly Cuong-Long and Jant Ltd (2011) N4674

Overseas case:

The Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438

Tampion v. Anderson [1973] VR 321

Counsel:

Mr. O. Dekas, for the Plaintiffs

Mr. A. Luke, for the First Defendant

Mr. A. Waira, for the Second Defendant

27th September, 2016

1. HARTSHORN J: This is a decision on a contested application to dismiss this proceeding. The application to dismiss is made by the second defendant Aees Real Estate Ltd (A.R.E.) and supported by the first defendant, the National Housing Corporation (NHC). It is opposed by the plaintiffs, Amos Ere for himself and on behalf of all tenants and occupiers of Tokarara NHC Hostel Allotment 192 Section 227 Hohola, National Capital District.

Background

2. A.R.E. is the registered proprietor of the property known as Allotment 192 Section 227 Hohola, National Capital District, being all of the land referred to in State Lease Volume 30 Folio 86 (property). A.R.E. purchased the property from NHC on 1st March 2016.

3. Amos Ere and the persons he purportedly represents live or occupy the hostel building on the property. A.R.E. sought to evict Amos Ere and the occupiers of the hostel from the property.

4. Amos Ere commenced this proceeding by originating summons seeking declaratory relief and consequential orders. The declaratory relief sought is to the effect that the property is a dwelling pursuant to s. 1 National Housing Corporation Act, that A.R.E. is not a person to whom NHC was entitled to sell the property, that the sale of the property to A.R.E. is illegal and that the transfer of title of the property to A.R.E. be cancelled.

This application

5. A.R.E. applies pursuant to Order 12 Rule 40 (a), (b), and (c) National Court Rules to dismiss this proceeding. A.R.E. submits that the proceeding should be dismissed as amongst others:

a) the plaintiffs lack the requisite standing to seek the substantive relief that they do and so the proceeding is frivolous;

b) the plaintiffs have admitted that A.R.E. has a valid title to the property;

c) the proceeding was filed by the plaintiffs without good faith;

d) A.R.E. has a valid title which is indefeasible;

e) the property is not subject to s. 37 National Housing Corporation Act and NHC may deal with the property as it thinks fit;

f) the representative requirements of the National Court Rules have not been complied with by the plaintiffs and so the proceeding is an abuse of the court process;

6. The plaintiffs submit that the proceeding should not be dismissed as:

a) they are legal tenants, their tenancy agreements are still current, they have the right to live on the property and so they have standing to bring the proceeding;

b) the proceeding was filed in good faith;

c) any admission made as to A.R.E. having a valid title is irrelevant, and in any event was only made by some of the plaintiffs;

d) NHC did not comply with s. 37 National Housing Corporation Act and so A.R.E.’s title is being challenged on this basis;

e) the plaintiffs can give their consent to this proceeding being commenced;

f) the property has different legal descriptions, the Prime Minister has issued a moratorium on the sale of properties by NHC and if the plaintiffs are evicted it will be unfair, contrary to the Constitution and against their human rights.

Law

Order 12 Rule 40 National Court Rules

7. There are numerous authorities in respect of the principles which apply to applications under Order 12 Rule 40 National Court Rules and I refer to the following cases in this regard: Kerry Lerro v. Stagg & Ors (2006) N3050, Takori v.Yagari & Ors (2008) SC905, Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007 and Siu v. Wasime Land Group Incorporated (2011) SC1107. The Court in Mount Hagen v. Sek (supra) in paragraphs 27 to 30 conveniently sets out the requirements of Order 12 Rule 40 (1) (a), (b) and (c) as follows:

“27. The terms “vexatious”, “frivolous”, “abuse of the process of the Court” and “reasonable cause of action” under O.12 r.40 of the National Court Rules have been judicially considered, defined and expounded in a number of decisions in both the National and Supreme Courts. These cases include Ronny Wabia v. BP Exploration Co. Limited & 2 Others [1998] PNGLR 8 (N1697); PNG Forest Products Pty Ltd and Another v. The State and Genia [1992] PNGLR 85; Gabriel Apio Irafawe v. Yauwe Riyong (1996) N1915; Eliakim Laki and 167 Others v. Maurice Alulaku and Others (2002) N2001; Kiee Toap v. The Independent State of Papua New Guinea & Another (2004) N2766; Kerry Lerro trading as Hulu Hara Investments Limited v. Philip Stagg, Valentine Kambori & The State (2006) N3050; Philip Takori & Others v. Simon Yagari & 2 Others (2008) SC 905. These cases say the same thing.

28. The law with regard to an application for dismissal of proceedings based on O.12 r.40 is settled in our jurisdiction. We note that the principles are succinctly set out in Kerry Lerro’s case (supra) and which has more recently been approved and applied by the Supreme Court in Philip Takori’s case (supra).

29. The phrase ‘disclosing a reasonable cause of action’ consists of two parts; cause of action and form of action. A cause of action is defined as a legal right or form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to establish or prove his claim. The principles stated by these cases can be summarized as follows:

(i) A plaintiff or claimant should not be driven from the judgment seat in a summary manner and that the Court should be cautious and slow in exercising its discretionary power.

(ii) The Court has an inherent jurisdiction to protect and safeguard its processes from abuse.

(iii) The purpose of O.12 r.40, is to give the Court power to terminate actions or claims which are plainly frivolous or vexatious or untenable.

(iv) A frivolous claim is one that is characterized as a claim that is plainly and obviously untenable, that cannot possibly succeed and bound to fail if it proceeds to trial.

(v) A vexatious claim is one that is said to be a sham and cannot succeed where it seeks to merely harass the opposing party and put that party to unnecessary trouble and expense in defending or proving the claim.

30. In an application under O.12 r.40 of the NCR, the Court may dismiss a proceeding or action where it is satisfied that the pleading in the statement of claim is seriously wanting where a necessary fact or legal element has not been pleaded.”

Representative proceeding requirements

8. Order 5 Rule 13 (1) National Court Rules...