JKT Lim Limited v Samson Bal Moua and Others
| Jurisdiction | Papua New Guinea |
| Judge | Dowa J |
| Judgment Date | 02 February 2024 |
| Neutral Citation | N10655 |
| Citation | N10655, 2024-02-02 |
| Counsel | No appearance, for Plaintiff,S B Moua, for first Defendant in person |
| Docket Number | WS NO. 323 OF 2023 |
| Hearing Date | 08 September 2023,02 February 2024 |
| Court | National Court |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 323 OF 2023
Between
JKT Lim Limited
Plaintiff
v.
Samson Bal Moua
First Defendant
and
Jay L W Contractors Limited
Second Defendant
and
Hariet Kokiva in her capacity as the Registrar of Companies
Third Defendant
Lae: Dowa J
2023: 8th September
2024: 2nd February
PRACTICE AND PROCEDURE — application for dismissal of proceedings for abuse of process — Order 12 Rule 40 of the National Court Rules-issues raised in the pleadings were determined in earlier proceedings-principles of res judicata applied — clear case for summary dismissal-application granted-proceedings dismissed.
Cases Cited:
Mt Hagen Urban LLG v Sek No.15 (2009) SC1007
Philip Takori v Simon Vagari (2008) SC905
Telikom PNG v ICCC & Digicel (PNG) Ltd (2008) SC906
Kerry Lerro v Philip Stagg (2006) N3050
PNG Forest Products vs. State (1992) PNGLR 84–85
Ronny Wabia vs. BP Exploration Co. Ltd (1998) PNGLR 8
Wabia vs. BP Petroleum (2019)) N4337
National Provident Fund vs. Maladina & Others (2003) N2486
Wambunawa Holdings Ltd. vs. ANZ Bank (2020) N8310
Titi Christian v Rabbie Namaliu (1996) SC1583
National Airline Commission v Lysenko [1990] PNGLR 266
AGC (Pacific) Ltd v Sir Albert Kipalan (2000) N1944
Kundu Consultants Ltd v The State (2001) N2128
Counsel:
No appearance, for Plaintiff
S B Moua, for first Defendant in person
Albright Lawyers: Lawyers for the Plaintiff
Samson Bal Moua: First Defendant in person.
Simon Sengi Lawyers: Lawyers for the Second Defendant
Malis Miningi: Lawyer for the Third Defendant
DECISION
2nd February 2024
1. Dowa J: This is a ruling on the first Defendants Notice of Motion to dismiss the proceedings under Order 12 Rule 40(1) of the National Court Rules.
Facts
2. The Plaintiff is a company operating in Lae, Morobe Province. It alleges, it has substantial interest in a property described as Allotment 6 Section 258, Lae. The Plaintiff owns the adjoining property, Allotment 5 Section 158, Lae.
3. Allotments 5 was sold to the Plaintiff. Around 2011, Mr Moua who held himself out as owner of Allotment 6 agreed to sell the property to the Plaintiff for K1.2 million. Prior to completing the agreement, it was discovered that the property was not registered in the name of Mr Moua. Mr Moua however assured the Plaintiff that he would secure the title and eventually transfer the property to the Plaintiff. Mr Moua then allowed the Plaintiff to move onto the property where the Plaintiff is alleged to have done substantial improvement on the land to the value of K2 million. The Plaintiff also alleges it paid K320,000 to Mr Moua for his services.
4. At all material times, the property, Allotment 6 was a vacant land. It was issued a title in the name of Pioneer Development Corporation Ltd. Pioneer Development Corporation Ltd was deregistered in 1995. The Plaintiff alleges, due to an irregular and questionable amalgamation deal, Pioneer Development Corporation Ltd.'s name was replaced by Bernika Enterprises Limited on the title to the property. The title was then transferred by Bernika Enterprises Ltd to JAY LW Contractors Ltd, the second Defendant.
5. Mr Samson Moua who had interest in the property challenged the transfer between Bernika Enterprises Ltd and JAY LW Contractors Ltd in the National Court in proceedings, WS No. 534 of 2013—Samson Bal Moua v Bernika enterprises Ltd. On 8th April 2019, the Court ordered by consent of the parties that the transfer be nullified, and the title and ownership of the property was vested in the Registrar of Companies, the third Defendant.
6. The Registrar of Companies then offered to sell the property to Samson Moua at K40,000.00 who did not take up the offer. The property was then sold to JAY LW Contractors Limited for K400,000.00.
7. The Plaintiff alleges, neither Samson Moua nor the Registrar of Companies, brought it to the attention of the Plaintiff of the offer for the sale of the property. The Plaintiff had been in occupation of the property and had substantial improvement done to the property since 2009. The Plaintiff alleges it was not given an opportunity to bid for the property.
8. Aggrieved by the decision and actions of the Defendants, the Plaintiff appealed the decision of the third Defendant under section 408 of the Companies Act, in proceedings—CIA No 5 of 20022-JKT LIMITED v HARIET KOKIVA, as Acting Registrar of Companies, JAY LW CONTRACTORS LIMITED AND SAMSON MOUA. During hearing this application, the Court was advised by the first Defendant that the Appeal CIA No 5 of 2022 was dismissed on 11th August 2023. The Court was handed up a copy of the written judgment of his Honour Dingake J.
Motion For Dismissal
9. I now turn to the first Defendant's application. By Notice of Motion, the first Defendant applies for the dismissal of the proceedings under Order 12 Rules 1 and 40 of the National Court Rules for:
a. lack of standing (locus standi).
b. proceedings disclosing no reasonable cause of action.
c. proceedings are frivolous and vexatious.
d. proceedings are an abuse of the process.
e. proceedings tend to cause prejudice, and embarrassment.
Evidentiary basis of the first Defendant's application
10. The first Defendant's application for the dismissal of proceedings is for frivolity and abuse of process. He submits that the current proceedings are a duplication of the proceedings in CIA of 2022 which has been dealt with and is an abuse of the process.
11. It is necessary to set out the evidentiary matters relied on by the first Defendant. The first Defendant, Samson Bal Moua, relies on his Affidavit sworn and filed 29th June 2023 in support of the application. He also relies on two other affidavits he filed in previous related proceedings in WS No 534 of 2021 — Jay LW Contractor Ltd v Samson Bal Moua & others and CIA No 5 of 2022—In the matter of the Companies Act Between JKT Lim Limited v Registrar of Companies, Jay LW Contractors & Samson Bal Mua.
12. This is the summary of Mr. Moua's evidence. He deposes he has an equitable interest in the property, Allotment 6 Section 158 Lae, Morobe Province. The property is a vacant land. The land is adjacent to his property, Allotment 5. He moved into the property early 2000 with the permission of the Lands Division of the Morobe Provincial Administration. He started developing the property. He was then liaising with the Lands Division for the consolidation of the lease with Allotment 5. For him to be granted a consolidated title, the state lease for Allotment 6 must be surrendered. While working on the consolidation of the leases, he learnt that the property was sold by one Bernika Enterprises Ltd to the second Defendant, JAY LW Contractors Limited.
13. He made enquiries with Lands Department and learnt that the original lease was granted to Pioner Development Corporation Limited, which was a deregistered company. Under suspicious amalgamation process, Pioner Development Corporation Ltd.'s name was replaced by Bernika Enterprises Ltd as owner of the property which subsequently sold the property to Jay LW Contractors Limited. Alleging foul play in the transfer initiated by Bernika Enterprises Ltd, Mr. Moua, instituted proceedings in WS No. 534 0f 2013—Samson Bal Moua v Bernika Enterprises Limited & Jay LW Contractors & other, seeking orders to nullify the transfer. On 8th April 2019, the parties reached agreement and signed a consent order. Under the terms of the consent order, the transfer between Bernika Enterprises Ltd and JAY LW Contractors Ltd was nullified, and the subject property was vested with the Registrar of Companies.
14. On 31st August 2020 the Registrar of Companies sold the property to the second Defendant after the first Defendant was given the right of refusal to buy the property. Aggrieved by the decision of the Registrar of Companies and the conduct of the first Defendant, the Plaintiff appealed the decision of the Registrar of Companies in the proceedings CIA No 5 of 2022. The statement of claim and the reliefs sought in CIA No 5 of 2022 are in identical terms to that of the current proceedings.
15. The proceedings in CIA No 5 of 2022 was heard by his Honour Dingake J and delivered his decision on 11th August 2023, dismissing the proceedings.
16. Prior to the filing of the CIA No 5, the Plaintiff filed a crossclaim in proceedings WS No 534 of 2021 instituted by the second Defendant between the same parties. The Plaintiff discontinued the crossclaim on 6th May 2022.
17. The first Defendant deposes that the current proceedings be dismissed because the issues raised in the proceedings between the parties is a duplication of the proceedings in CIA No 5 of 2022 which has been dealt with and concluded.
Plaintiffs' Claim
18. The Plaintiff's lawyers made no appearance in Court to respond to the first Defendant's application even though he was served with the notice of the application. Despite the non-attendance by the Plaintiff, I will refer to the pleadings against each of the parties to ascertain whether the first Defendants application is sustained.
19. The Plaintiff's claim is succinctly set out in paragraphs 2 to 8 above and there is no need to repeat same.
Issues
20. The main issue for consideration is whether the proceedings be dismissed for frivolity and abuse of the process under Order 12 Rules 1 and 40 (1) of the NCR.
The law under Order 12 Rule 40 of the NCR.
21. The application for dismissal is made under Order 12 Rule 40 (1) of the National Court Rules. It reads:
“40. Frivolity, etc. (13/5)
(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...
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