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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA No 69 of 2012
BETWEEN:
LUSON RAU AMBEN
First Appellant
AND:
LETINA IPUIA
Second Appellant
AND:
RICHARD MARU as the Managing Director of
Rural Development Bank
First Respondent
AND:
THE RURAL DEVELOPMENT BANK
OF PAPUA NEW GUINEA
Second Respondent
AND:
LAKU KALKALI
Third Respondent
Waigani: Davani, Hartshorn and Sawong JJ
2014: 18th December,
2015: 5th March
ISSUE ESTOPPEL – Res Judicata – Joint Tenancy – Inherent Jurisdiction of the Supreme Court
Counsel:
R. T. Yansion, for the Appellant
L. Manua, for the First and Second Respondents
G. Epor, for the Third Respondent
Cases Cited:
Papua New Guinea Cases
Mt Hagen Airport Hotel Pty Ltd v. Gibbes [1976] PNGLR 216
Walter Perdacher .v PNGBC (1997) N1637
Mark Ekapa & Others v. William Gaupe & Ors (2004) N269
Ivan Saun v. Chief Inspector Hodges Ette (2005) N3031
Steven John Ross v. The State (2007) N3241
John Bangkok v. Rey Sena (2007) N3225
The State v. Brian Inolu (2008) N3493
East Arowe Timbers Resources Limited v. Kakara Alam (PNG) Limited (2008) N3270
Moime v. National Housing Corporation (2012) SC1191
National Housing Corporation v. Paul Asakusa (2012) SC1185
Mugai Miamai v. Nungot Banick (2013) N4955
Overseas cases
Wright v. Gibbons [1949] HCA 3; [1949] 78 CLR 313
Mills v. Cooper [1967] 2 QB 459
DECISION
1. DAVANI J: I have read the reasons for decision by my brothers Hartshorn and Sawong and agree that the appeal should be dismissed.
2. My brother Sawong J. has set out the background to the appeal, the grounds of appeal and the submissions of counsel, so I need not set them out. My brothers also extensively discussed the law in relation to estoppel, Res Judicata and Joint Tenancy so I need not reiterate these.
3. It is clear that the appellants believe that they have a good case because:
i) Another Judge earlier, had already decided the same issues that the judge being appealed from, decided on;
ii) That since her husband Tom Amben's death, that the first appellant Luson Rau Amben had an interest or right to ownership in the property, the subject of the proceedings;
iii) That because the matter was before the ADR track for mediation, that the trial Judge should not have heard the application.
Analysis of evidence
4. The appellants and the respondents generally agree that the issues to be decided in relation to the 3 points raised above were these, respectively:
i) Issue Estoppel and Res Judicata
ii) Joint tenancy and survivorship
iii) Matter already on the ADR/Mediation track.
Issue Estoppel and Res Judicata
5. Justice Salika (as he then was), had earlier heard an application to dismiss the proceedings filed by the second respondent, then second defendant. The motion sought orders to dismiss the proceedings for want of prosecution pursuant to Order 4 Rule 36 of the National Court Rules or alternatively, Order 12 Rule 40 of the National Court Rules.
6. In handing down his decision, his Honour said:
"10. To me there are serious issued to be tried in this matter, issues such as;
(1) Whether the first plaintiff had now taken over her late husband's liability
(2) Whether the first plaintiff's requests to rearrange the loan repayment was known to the bank
(3) Whether the bank was aware the first plaintiff was repaying the loan
(4) Whether putting up the property for sale by public tender was fair to the first plaintiff in all circumstances
11. I think these are serious issues that must be properly resolved through a proper trial and not in the way suggested by the defendants.
12. In the circumstances, I will deny the application to dismiss the matter for want of prosecution but I will award costs of the application to the first and second defendants."
(see pg 148 of the AB Vo. 1) (my emphasis)
7. Although appellants counsel Mr Yansion submits that Salika .J had made a finding under O. 12 R. 40, that appears not to be the case because Salika .J dismissed the application for want of prosecution. So His Honour's ruling is in relation to the application to dismiss for want of prosecution, preferring that the matter go to trial on the serious, arguable issues, that he pointed out and which I set out above .
8. In my view, Mr Yansion would be correct if his Honour was specific in his ruling that these were serious issues and that he would dismiss the application under O. 12 R. 40.
9. As far as I can tell, his Honour entertained and dealt only with the application to dismiss for want of prosecution, not an application under O. 12, R. 40.
10. I note also that the decision of the trial Judge being appealed, which is found at pgs 357 to 368 of the appeal book Vol 2, is contradictory to a certain extent in that although the trial Judge held and found that Salika .J dealt with the application then, under O. 12 R. 40 of the NCR (see par 20, pg 366, 367 of the AB Vol. 2), that in the next paragraph, the trial Judge said:
"21. The fundamental issue raised by the applicants in the application before this Court is whether there is a reasonable cause of action. This is the same issue that Salika .DCJ determined in his ruling. The question then arises whether the facts and circumstances in that ruling are the same in the present application. In my opinion, the facts and circumstances are clearly not the same." (my emphasis)
11. So, although the trial Judge may have contradicted himself, what has surfaced is the fact that the application to dismiss was first moved before Salika .J on 21st May, 2008, which was a motion filed by the Rural Development Bank, second respondent, then, second defendant, motion moved pursuant to O. 12 R. 40. O. 12 R. 40 is an either/or provision. The motion should have specified which sub paragraph of O.12 R. 40, the applicant was proceeding under. Although the motion did not plead the sub paragraphs of O. 12 R. 40 that the application was moved under, par. 2 of that motion stated that the Rural Development Bank was looking to dismiss the proceedings, "for being frivolous and vexatious".
12. The Amended Motion moved on 21st May, 2012 by the Rural Development Bank did not specify the sub paragraph it was relying on, rather stated this:
"1. Pursuant to Order 12 Rule 40 of the National Court Rules, the proceedings against the first and second/or second defendant(s) be dismissed at it discloses no reasonable cause of action or the proceedings are frivolous or vexatious or the proceedings are an abuse of the process."
13. So even though the trial Judge proceeded, albeit correctly, to consider submissions by counsel, it is always important that there is concise and clear pleading of the jurisdictional basis on which the application is being moved (O. 4 R. 8 of the National Court Rules). Non pleading can result in the motion being struck out.
14. One can argue that parties were not misled by this pleading omission and deficiency, however, without pleading the correct jurisdictional basis, which forms the foundation of any motion or any proceedings, the application or proceeding is baseless. Notwithstanding, the appellants did not raise any objections in the court below, because, it appears, all parties understood the nature of the application before the trial Judge.
15. The trial Judge is very focused on the fact that the pleadings were too general and vague and that the claim was very ambiguous, having commenced by Originating Summons. Having said that, I note Mr Yansions submissions, for the appellants, that these same issues were raised by counsel and considered by Salika .J hence, the matter was res judicata. However, I am reminded by Salika .J's decision that he did not dismiss the proceedings for want of prosecution but would not dismiss the proceedings for want of prosecution because there were serious, arguable issues. These are very distinctive differences where the matter was not brought to a conclusion after consideration of issues. The proceedings remained.
16. No doubt, his Honour Salika J. did not make a final determination on the issues that were before him, (see East Arowe Timbers Resources Limited v Cakara Alam (PNG) Ltd N3270; the State v. Brian Inolu (2008) N3493) rather, referred the matter for hearing to another day.
17. I find there was no error in fact and law when the trial Judge held and found that the principle of res judicata did not apply.
Joint Tenancy and Survivorship
18. The Notice of Appeal now before this Court, filed on 22nd June, 2012 by Leo Lawyers, does not plead a ground relating to the Joint Tenancy issue.
19. However, this Court has the power and the authority to control the proceedings that come before it and can put an end to proceedings that are clearly hopeless.
20. In this case, the National Court proceedings were commenced in 2005. The matter had gone before several judges in different forms, then eventually before the trial Judge on 21st May, 2012. After hearing parties, the trial Judge dismissed the proceedings because the plaintiff's claim was too general and vague. (par. no. 23 of Decision and pg 376 of AB).
21. As a member of this Court, I must make a decision that will ensure either, the smooth progress of the matter or the determination of the matter.
22. The appellants' lawyers did not apply to the Court for leave to amend the Notice of Appeal to include that ground. However, as far as I can tell, this is a submission that was raised by the Respondent's in the Court below but which was not considered by the trial Judge, the fact that upon the deceased's death, the property vested in the surviving joint tenant and not to anybody else and that therefore, the first appellant did not have a cause of action on which to pursue his claim to the title, regardless of the circumstances. And indeed, that submission in itself, could have determined the appellants' claim in the National Court.
23. In this case, Tom Amben (Deceased) and Letina Ipuia, the second appellant, were registered as Joint tenants over the property described as S. 361 L.1 Hohola National Capital District contained in State Lease Volume 111 Folio 227 (the 'Property'). The Deceased took out a loan to refinance and secure his loan account. The second respondent gave that loan which was secured by a mortgage over the Property with the second respondent bank as mortgagee, to exercise its powers of sale under the mortgage, in the event of default.
24. After the Deceased died, the loan account then went into arrears. Although his wife, the first appellant, did service the loan, she could not satisfactorily comply which resulted in the bank exercising its powers as Mortgagee. The Property was sold on tender and the third respondent purchased it. However, the first appellant took out a restraining order claiming that as the Deceased's wife, she was entitled under the Wills Probate and Administration Act and the Public Curator's Act, to the Deceased's estate.
25. However, that submission is not correct. Under the common law rules of survivorship, the death of a joint tenant leads to his interest being transferred automatically to the surviving tenant (Mugau Miamai v. Nungot Banick (2013) N4955).
26. Obviously, the first appellant cannot persist with her claim in the National Court especially if that action is clearly untenable and incontestably, bad. In fact, the Supreme Court has the powers, authority and jurisdiction of a judge exercising the jurisdiction of the National Court. (S.6 (2) of Supreme Court Act). And under S. 16 (b) of the Supreme Court Act, the Supreme Court can affirm the National Court's decision.
27. I have to revisit the pleadings in the Originating Summons to then ascertain if and whether the first appellant has a valid or good claim in law. In her OS, she pleads that the sale of the Property to the third respondent is null and void because of non-compliance with the provisions of the both Acts that were supposedly breached. That is very bad pleading because the first appellant has not particularised the provisions of the both acts that were purportedly, not complied with.
28. She seeks further Declarations that she should be declared as the appropriate person to manage her late husband's estate and that the second and third respondents should have given her notice of the intended tender sale.
29. The law is that a mortgagee should and can exercise his power of sale if there is default in the loan arrangements. A mortgagee's right to do so has a very strong foothold in these arrangements that even when a party seeks to restrain a mortgagee from exercising the power of sale, that the Court will direct that a Mortgagor pays into Court the sum sworn to be due.(see Mt Hagen Airport Hotel Pty Ltd v. Gibbes [1976] PNGLR 216).
30. In fact, a mortgagee exercising his power of sale is not a trustee of the power of sale for the mortgagor. He has a right to realise the sale when he likes and not obliged to wait for a better time of sale or a bigger auction attendance but he has a duty of care to take reasonable care to obtain what is the true market value (see Walter Perdacher .v PNGBC (1997) N1637).
31. Which means that relief no. 4 of the plaintiff's originating summons will obviously fail because the first appellant (first plaintiff then) is asking that the third respondent (second defendant then) should have given her notice of the sale. The third respondent is under no obligation to give notice to the first appellant. A bank is required by law to advertise the tender sale and that is all it does. And as held in Walter Perdacher v. PNGBC (supra), he can realise the sale whenever he wants to and need not wait for anybody as long as it gives a fair market value.
32. Clearly, the first appellant cannot raise the submission or seek declarations that she is entitled to proceeds from the Deceased's estate because she is his wife. That submission and claim is untenable in law.
ADR and Mediation
33. The trial Judge did not address this component of the Respondents' amended notice of motion in his decision probably because it is an order sought in the alternative, in paragraph 2 of that motion.
34. Having made a finding in relation to paragraph 1 of the motion (i.e O.12 R.40 application), there was no need for the trial Judge to continue to address the alternative relief sought.
35. I do not see how the trial Judge could have erred in what I consider to be a proper exercise of discretion by a trial Judge.
Conclusion
36. In all, I find that the trial Judge did not err in the exercise of his discretion when he ordered the dismissal of the National Court proceedings. This is because his Honour, quite rightly put an end to proceedings that had no merit, that were untenable and that were very futile.
Formal Orders
37. The formal orders of this Court are:
a) The appeal is dismissed;
b) The appellants will pay all respondents' costs of the appeal, to be taxed if not agreed.
38. HARTSHORN J: I have had the benefit of reading the draft judgments of Justices Davani and Sawong and agree that this appeal should be dismissed.
39. It is not in dispute that the subject property was owned by two joint tenants. From a perusal of the relief sought in the National Court proceeding, it is apparent that the concept of joint tenancy has been misunderstood. Were it otherwise, the relief claimed would not have been.
40. The allegation that the Public Curators Act or Wills, Probate and Administration Act have not been complied with and that a widow of a deceased is entitled to his estate, implies that a deceased joint tenant's interest in a joint tenancy is dealt with as part of his estate. It is not: Wright v. Gibbons [1949] HCA 3; [1949] 78 CLR 313; Mugai Miamai v. Nungot Banick (2013) N4955.
41. Further, the declaration sought concerning notice that should have been given to one joint tenant about the others purported default implies separate as opposed to joint and several ownership and liability.
42. Given the above, it is clear that the National Court proceeding is bound to fail as the plaintiffs are not entitled to the relief that they seek.
43. In such circumstances this court can exercise its inherent jurisdiction. In Moime v. National Housing Corporation (2012) SC1191, the Court of which I was a member, dismissed an appeal for being frivolous as the National Court proceeding was bound to fail and no useful purpose was served by the appeal being heard. At para 4 the court said:
"In Don Polye v. Jimson Papaki & Ors (2000), the court said:
"This Court always has had authority and of course jurisdiction to ensure the integrity of its process. Accordingly any proceedings not brought in good faith or which are frivolous, vexatious or oppressive can and will be struck out by a Court as an abuse of its process."
5. This passage was cited and approved in Tamali Angoya & Ors v. Tugupa Association Inc & Ors (2009) SC978 which commented that the exercise of this Court's authority can be by its own motion. The Court then, pursuant to its inherent jurisdiction, dismissed the appeal before it on a ground of appeal that was not specifically argued on the basis that there was an abuse of process. This Court in the case of Rimbao v. Pandan (2011) SC1098 also cited the passage in Don Polye (supra) and in Mendepo v. National Housing Corporation (2011)SC1169, the Court referred to these decisions with approval and stated that the exercise of this Court's authority can be by its own motion."
44. For the above reasons, I am of the view that the appeal should be dismissed.
45. SAWONG J: I have read the draft judgment of Justices Davani and Hartshorn. I agree with the reasons each of them have given and the conclusions. However I wish to add a few remarks of my own.
46. This is an Appeal against the dismissal of the proceedings for the reasons that the proceedings against the first and second respondents disclosed no reasonable cause of action or the proceedings are frivolous or vexatious or the proceedings were an abuse of the Courts process.
Brief Facts
47. The proceedings involved a dispute over a piece of property described as Section 361 Allotment 01 Hohola, National Capita District (the Property). A loan agreement was entered into between the second respondent on the one hand and Tom Amben and Letina Ipuia on the other. They were registered on the Title Deed as owners of the said property. They also entered into a mortgage agreement with the bank. Sometimes after this Tom Amben died. Luson Rau Amben, the first appellant is the widow of Tom Amben. As Tom Amben and Letina Apuia did not repay this loan, the Bank exercised its powers of foreclosure and sale under the mortgage. They advertised the property for sale and the Third Respondent bought the property from the Bank. The First Appellant than instituted proceedings in the National Court. As will be seen, the proceedings took a convoluted, protracted and sometimes confused manner in having the dispute resolved.
48. A chronology of the proceedings is as follows. On 14 September 2005 the appellants commenced proceedings in the National Court by an Originating Summons seeking the various declarations.
49. In support of the reliefs sought in the Originating Summons, the appellants filed Affidavits in Support which were deposed to by the first appellant, Luson Rau Amben.
50. The proceedings dragged on without much progress. Subsequently, in February 2008 the respondent's in house lawyers wrote to the Appellants lawyers forewarning them that if they did not do anything about progressing the proceedings, they would make an application to the Court to dismiss the entire proceedings.
51. On 7th March 2006, the Respondents filed a Notice of Motion seeking the following Orders:
"1. The Whole proceedings be dismissed for want of prosecution pursuant to Order 4 Rule 36 of the National Court Rules
2. Alternatively, the whole proceedings to be dismissed for being frivolous and vexatious pursuant to Order 12 Rule 40 of the National Court Rules.
3. The plaintiffs pay the First and Second Defendants costs of this application and the proceedings."
52. This application was contested before Salika, J. On 8th July 2008, he dismissed the application but ordered the appellants to pay the respondents costs.
53. In late 2009, the appellants changed the lawyers and the proceedings dragged on without much progress.
54. In 2011, the respondents' engaged the firm of Rageau Manua & Kikira Lawyers.
55. By a letter dated 5th December 2011, the respondent's lawyers advised the appellant's lawyers that an application would be made to the Court to have the matter removed from the ADR Court so that the matter should proceed by way of pleadings through a Statement of Claim identifying a cause of action and relief especially relating to damages.
56. On the next day, by a letter dated 6th December 2011 the respondents lawyers again wrote to the lawyers for the appellants and advised them to review the proceedings and the following:
a) "remove Luson Amben as a Plaintiff as she is not a party to the loan and mortgage agreement and further that she is not a joint tenant or surviving joint tenant to the property.
b) Plead the claim through a Statement of Claim based on law and damages and this should allow the defendants or respondents to respond properly with a defence.
c) The First Respondent to be removed as a party to the proceedings and the name of the Second Respondent should be amended to its present name.
57. On 8th December 2011, the respondent filed a Notice of Motion to have the matter removed from the ADR Court and for the Appellant to file a Statement of Claim and the proceedings to proceed by way of pleadings. That Notice of Motion was returnable on the 14th of December 2011.
58. On 14th May 2012, the First and Second Respondents filed an Amended Notice of Motion. The principle relief that was sought and pleaded was:
" 1. Pursuant to Order 12 Rule 40 of the National Court Rules, the proceedings against the First and/or Second Defendants be dismissed as it discloses no reasonable cause of action on the proceedings are frivolous or vexatious or the proceedings are an abuse of the process"
There were alternative reliefs sought but which is not relevant for the present purposes.
59. On 14th December 2011, the respondent's Notice of Motion did not get heard and in early 2012 the appellants wanted an adjournment and so the Notice of Motion was adjourned.
60. In support of Amended Notice of Motion the defendant relied on the affidavit of Mr. Lionel Manua sworn and filed on 14th May 2012.
61. On 17th May 2012, Mr Bob Waipek one of the lawyers for the appellants swore and filed an answering affidavit in response to the affidavit in support of Mr. Lionel Manua.
62. On 23rd May 2012, Yagi, J heard the motion and dismissed the entire proceedings. The appeal is therefore against that decision.
Grounds of Appeal
63. The grounds of appeal as set out in the Notice of Appeal maybe summarised as follows:
1) Res judicata or issue estoppel
2) Lack of jurisdiction
3) The National Court had no jurisdiction to deal with an Alternative Dispute Resolution matter or
4) Error of law in holding that the mediation had failed.
Issues
64. The grounds of appeal raised a number of issues. These are:
1) Whether the National Court erred in law and in fact and misapplied the doctrine of res judicata and doctrine of estoppel by record.
2) Whether the Court erred in law to entertain the application which raised the same issues which had already been heard and determined by the same Court and therefore the Court lacked jurisdiction to hear and determine the application.
3) Whether the Court erred in law to entertain the application without leave when the proceedings was an ADR matter or whether the Court erred in Law in that having noted that mediation had failed and thereby entertaining the application and dismissing the proceedings.
65. Although, the grounds of Appeal seem to raise four issues, in my view issues 1 & 2 are related and may be dealt with together. Issues 3 & 4 are also interrelated and they will be dealt with together.
Law
66. The principles of issue estoppel was discussed and accepted as being applicable in Papua New Guinea by an earlier Supreme Court in Titi Christian v. Rabbie Namaliu where the Court adopted and said:
" An authoritive statement as to issue estoppels is that stated by Diplock LJ in Mills v. Copper [1967] 2QB 459 at PP468-469:
" That doctrine, so far as it affects civil proceedings, maybe stated; a party to civil proceedings is not entitled to make, as against the other party, an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or they are predecessors in title and was found by a Court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the ascertain and could not b reasonable diligence have been accused by that party in the previous proceedings has since become available to him".
"Before an assertion is precluded from being made it must inter alia, have been the same assertion, have been an essential element in the previous cause of action and was found by a Court of competent jurisdiction to be incorrect."
67. In National Housing Corporation v Paul Asakusa (2012) SC1165 the Supreme Court discussed the prerequisites for operations of issue estoppel. The brief facts from the head notes that the National Court upheld a motion by the respondents for dismissal of proceedings commenced by the appellant on the grounds that the doctrine of issue estoppel applied. In the National Court it was held that, as the central issue in the proceedings concern the ownership of land and that issue had been determined in prior judicial proceedings, the appellant was stopped from challenging the respondent's title in the land. The appellant who had been the plaintiff in the National Court, appealed against that decision. One of the grounds of the appeal raised the issue of issue estoppel. The Court said at page1:
"The first thing we must do in determining whether the primary Judge erred in deciding that issue estoppel was applicable is to determine what the prerequisites for each application are. Having considered the competing arguments to the parties there are three prerequisites:
(a) The issue raised in the current proceedings is the same issue as that raised in the prior proceedings;
(b) The issue was finally determined in the prior proceedings;
(c) The parties in the two proceedings are the same as those in the prior proceedings or, if they are not the same, the party against whom the issue estoppel is sought to be applied was a privy of a party to the prior proceedings and reasonably expected to be aware of the prior proceedings and entitle to be joint but failed without explanation to do so."
68. In Mark Ekapa & Others v William Gaupe & Ors (2004) N269, Cannings, J set out a useful guide relating to the principle of res judicata. His Honour said at pp.21:
"Res judicata is a common law principle or legal doctrine that has been adopted as part of the underlying law of Papua New Guinea.
It is expressly recognised by Schedule 2.8(1)(a) of the Constitution. It is a defence to a claim, when the following conditions apply.
69. As to the principle of issue estoppel he stated at page 22:
"the principle of issue estoppel is closely related to res-judicata. It is a subject of res-judicata. To establish the defence of issue estoppel a party only has to show that an issue of fact or law or mixed fact and law has been authoratively and finally determined in a previous case. The cause of action does not have to be same, nor do the parties".
Issues 1 & 2
70. Counsel for the appellant submits that the National Court presided by Yagi J did not have jurisdiction to hear the motion by the respondent under Order 12 Rule 40 of the National Court Rules. It was submitted that the respondents had made a same or similar application previously before Justice Salika (as he then was) who had heard the first motion and dismissed the application. It was submitted that because Justice Salika had already dealt with a similar or same application founded on the same rules, the principles of res judicata and issue estoppel arose. As a similar application founded on the same basis between the same parties had been on ground and dismissed the same issues not or should not be reargued.
71. It was submitted that His Honour Justice Yagi erred in law and in fact when he considered the same application that was dismissed by Justice Salika. The Court constituted by Justice Yagi was neither an Appellate Court nor a Court of Review.
72. Next it was argued that, the National Court lacked jurisdiction and the National Court proceedings should not have been dismissed. It was argued that, His Honour Justice Yagi erred in law in entertaining the application that was not properly before the court.
73. The 1st & 2nd respondents in their detailed submissions addressed this issue this way. They submit that the Court had inherent power and jurisdiction to deal with the motion and on the strength of the evidence before the Court it was satisfied that the issues and all facts were different and therefore he dealt with it. It is submitted that the principles of res judicata and the operation of estoppel did not arise.
74. The respondents submit that, the doctrine of issue estoppel or res judicata do not arise in the circumstances of this case. They submit that the appellants have not met or satisfied any of the prerequisite of the principle reliefs, to res judicata or issue estoppel on the records. Here the respondents rely on the following authorities National Housing Corporation v Paul Asakusa (2012) SC1185; The State v Brian Inolu (2008) N3493; East Arowe Timbers Resources Limited v Cakara Alam (PNG) Limited N3270; Steven John Ross v The State (2007) N3241; Ivan Saun v Chief Inspector Hodges Ette (2005) N3031.
75. They submit that the principles that emerged from those authorities support the position the respondents took at the National Court proceedings before his Honour Justice Yagi. They submit that the application by the respondent to dismiss the proceedings for disclosing no reasonable cause of action, or frivolous or vexatious or is an abuse of the process of the Court for the specific reason that the principle appellant who is the principle plaintiff in the proceedings in the National Court had no legal right or interest to issue the proceedings concerning the property. It was submitted that she had no legal right or interest to issue proceedings against the first defendant as there was no specific claim made against him in the proceedings and therefore did not raise issue of estoppel or res judicata.
76. They further submit that there was no evidence to show that the specific facts or reasons for the application to dismiss the proceedings were the same as those before in the first notice of motion.
77. The respondents submit that there was no evidence produced by the appellants at the National Court that the facts and issues in both applications were the same. Here it is submitted that the affidavits relied on by the appellants in response to the respondents application in the amended notice of motion in the National Court was the affidavit of their lawyer which was sworn and filed on the 17th of May 2012. He submitted that this affidavit by Mr Waipek refers to reliance on the affidavit of Luson Rau Amben filed on 21st June 2007, 13th December 2007, 20th December 2007, 9th December 2010 and 12th December 2010 and the affidavit of Robert Amben filed on the 17th January 2008. They submit that these affidavits which were relied on by the appellants did not respond to the matters or facts raised in the respondent's affidavit that was used to support the application.
78. It is further submitted that even if they had the evidence in those affidavit, there was a major defect in the proceedings that could not easily be cured in that the first appellant Luson Rau Amben had no right or interest recognised by law concerning the property to be able to pursue the proceedings.
79. Thirdly, the respondents argue that the appellant had no standing or interest in the proceedings as she is neither a joint tenant nor a survivor joint tenant. Here it is submitted that the first appellant Luson Rau Amben has no legal standing to bring the proceedings or be a party in the proceedings over the property named as Section 361 Allotment 01, Hohola (the property). It is submitted that the evidence shows that the owner of the property is Tom Amben and Letina Ipuia as joint tenants. The evidence also shows that these joint tenants obtained a loan from the National Development Bank Limited and also signed the mortgage agreement with the said bank over the said property. It is submitted that there was also evidence that when the joint tenants failed to repay the loan the bank fore closed on the property pursuant to its powers under the mortgage and sold it to the third respondent.
80. The respondents submit that Luson Rau Amben is not and has never been a joint tenant and that she has no right or interest recognised by law to issue proceedings. She is also not a party to the loan and mortgage agreement with the bank and as such she was not privy to the contracts between the Bank and Tom Amben and Letina Ipuia.
81. The respondents also relied on section 32 of the Land Registration Act Chapter 191. They submit that this provision states that where an instrument of title describes a person as a proprietor of an estate or interest or indicates by any other form of words, that a named person is seized of, or entitled to or has taken an estate or interest that this person is the registered proprietor of the estate or interest. They also submit that section 34 of the Land Registration Act applied in this case as it provides that:
"where two or more persons are registered as joint proprietors of an estate they are entitled to that estate or interest as joint tenants"
82. It was submitted that accordingly, pursuant to sections 32, 33 and 34 of the Land Registration Act, the only person that the law recognises as having any interest over the property are Tom Amben and Letina Ipuia who are registered as joint tenants, and not the First Appellant.
83. The respondents submits that a perusal of the Originating Summons and the affidavits filed by Luson Rau Amben shows that she claims to have an interest or right on the basis that her husband died and his interest if any was inherited by her. It was submitted that she fails to understand the law that interest of her late husband as a joint tenant of the property cannot or could not be transferred, inherited, assigned or divested and be vested in her because of the doctrine in law known as "survivorship" in cases where a joint tenant dies and the other tenant is alive. The property is then solely owned by the surviving joint tenant. Here the respondents rely on the principle of law set out by Professor Peter Butt in his book titled Peter Butt, Land Law., 6th Edition; Mugai Miami v Nungot Banick N4955 and John Bangkok v Rey Sena (2007) N3225.
84. It was submitted that the principle of survivorship and the unity of elements in joint tenancy clearly confirm that Luson Rau Amben has no interest or right recognised by law to issue the proceedings in respect of the property.
85. It is further submitted that the affidavit which she filed and the claim she made in the originating summons are vexatious and frivolous. The proceedings do not disclose a reasonable cause of action and amount to an abuse of the process of the Court.
86. The third respondent supports the submissions made by the first and second respondents. It was submitted that the Court did not make any error of law and fact when it dealt with the motion before it. Furthermore it was submitted that there was no evidence produced by the Appellants in the National Court that the facts and issues of both applications or the second application were the same. Moreover the First Appellant has no standing or interest in the proceedings or matter as she is neither a joint tenant nor a survivor of the joint tenant.
87. Applying the principles of law, I have set out earlier, I now consider whether the three prerequisites of the principles of res judicata/issues estoppel on the record have been made out by the appellant in this case.
a) Was the issue raised in the second proceedings the same issue as that raised in the prior proceedings.
88. As to this prerequisite, I accept the submission of the Respondents for a number of reasons. First, whilst the first Notice of Motion pleaded the same basis, there is no evidence from the Appellants as to the issues that was raised before Salika J. There is no evidence from the Appellant as to kind of issues raised before Salika, J in the first proceedings. It is difficult to determine without that kind of evidence, whether the issues raised in second proceedings is or are the same as those raised in the prior proceedings. In the circumstances, I come to the conclusion that the first prerequisites have not been satisfied by the Appellant.
b) Did the prior proceedings finally determine the issues between the parties.
As to this issue, it is clear from the submissions that the determination by Salika, J did not finally determine the issues between the parties in the first Notice of Motion or the prior proceedings. The proceedings were still on foot. It follows that the issue between the parties was not finally determined in the prior proceeding. The Appellants have not in, my view, satisfied the second prerequisite.
89. As to the third element, whilst the parties in the Notice of Motion are the same, the reliefs sought were not the same. The pleadings raised in the second Notice of Motion were quiet distinct and separate from the first Notice of Motion. For those reasons, in my view the appellants have not satisfied the third criteria.
90. For those reasons, I dismiss grounds 1 and 2 of the Notice of Appeal.
Grounds 3 and 4
91. In regard to these issues, the Appellants submitted that the proceedings were the subject of mediation process and therefore the application by the respondents were prematurely filed. It was submitted that His Honour erred in law and in fact when he proceeded to hear the application, when the proceedings were the subject of mediation under the ADR Rules.
92. As to this argument the respondent submits that there was no evidence produced by the Appellant at the National Court before Yagi, J, that the matter was an ADR matter. It is further submitted that even if there was any evidence of decisions or Court Orders for mediation, that it did not prevent the National Court to deal with the matter in the manner it has done because this is permitted by section 5(5) of the ADR rules.
93. The Third Respondent supports the submissions by the First and Second Respondents.
94. I have considered the submissions by parties. Section 5(5) of the ADR rules states:
"Order Mediation....
[5] making an order from mediation does not:
(a) automatically operates as a stay of the proceedings;
(b) imply any authority or the mediator to impose a decision on the parties".
95. I accept the submissions by the Respondents. There was no evidence by the Appellants that the proceedings were the subject of mediation proceedings. All the affidavits that the Appellants lawyer Mr Waipek filed in response to the application in the second Notice of Motion basically referred to the affidavits of the First Appellant. Those were irrelevant and immaterial evidence relating to the application before Yagi J. Those affidavits did not nor in any way show that the matter was the subject of mediation proceedings.
96. In those circumstances and for those reasons I would dismiss grounds three and four of the Notice of Appeal.
97. In the end I would dismiss the Appeal in its entirety and Order that the Appellants pay the taxed costs of the Respondents.
_____________________________---________________________________
Yansion Lawyers: Lawyers for the Appellant
Rageau Manua & Kikira Lawyers: Lawyers for the First & Second Respondents
Epor Lawyers: Lawyers for the Third Respondent
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