DC954

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CIVIL JURISDICTION

CASE No 42 OF 2010

BETWEEN:

TOM SIKALI
Complainant

AND:

CLAUDIA ROKUE
Defendant

Madang: J Kaumi

2010: 12th/19th APRIL

SUMMARY CIVIL PRACTICE & PROCEDURE –Defendant’s application to have matter dismissed-Court has no jurisdiction in matters of Slander of Title & Lack of evidence-Pleadings closed-No trial date set down after close of pleadings-Proceedings are premature and misconceived.

Held:

(1)	Slander of title is a tort, the elements of which are intentionally casting an aspersion on someone’s property; if you are selling your house and someone says that it is full of termites you can sue them for the tort of slander of title.

(2)	In the immediate matter I find therefore that the application to dismiss proceedings by the defendant on the basis of slander of title is misconceived if for two reasons:-

(a)The reason for the said application is based on the wrong premises when considered against the definition of the tort of slander of title. This definition has nothing to do with the title of a person be it in relation to his occupation, his position or whatever humanly titles we give to a person on the contrary it has to do with something completely different, and that is property in land, chattels or intangible property i.e. a building, a car, a ship etc.

(b)I find as well that the complainant’s claim is not based on alleged damage to his professional capacity but rather on his personal reputation.

(3)	Order 10 rule 5 of the National Court Rules creates an obligation on the part of the plaintiff to set the proceedings down for trial within 6 weeks.

(4)	The practice now is that, no Notice to Set Down for Trial will be filed unless it is endorsed or consented to by both parties. That this was to ensure that both parties have agreed that the matter is ready for trial after the completion of pleadings and interlocutrices. ”. Dogoli v Laho [2005] N2885 (19/07/05) Sawong J.

(5)	In this matter no date has been set down for trial as consented to by both parties.

(6)	A party has a right to have his case heard, as guaranteed by the Constitution and the laws of this country. Such a right cannot be lightly set aside. PNG Forests Products and Inchape Berhad v The State and Genia, Minister for Forest [1992] PNGLR 85.

(7)	Our judicial system should never permit a plaintiff or a defendant to be “driven from the judgment seat” in a summary way, “without a Court having considered his right to be heard”. . PNG Forests Products and Inchape Berhad v The State and Genia, Minister for Forest [1992] PNGLR 85.

(8)	Application to dismiss proceedings struck out for reasons of being misconceived and premature.

Cases Cited: 

Dogoli v Laho [2005] N2885 (19/07/05)
PNG Forests Products and Inchape Berhad v The State and Genia, Minister for Forest [1992] PNGLR 85

Legislation Cited:

District Courts Act
National Court Rules

Counsel: Mr.Tabai, for the Complainant
Mr Illaisa for the Defendant

19th April 2010

INTRODUCTION

1. Kaumi, M The matter before me this morning for ruling is by way of a motion by the defendant to dismiss the proceedings the complainant commenced against the defendant.

2. The orders sought by the motion are as follows:-

(a)The Complainant’s action in respect to slander as to title be dismissed for want of jurisdiction of the Court and is made pursuant to Section 21(4) (c);

(b)The Complainant’s claim for damages for alleged pain and suffering be dismissed for reasons of lack of evidence.

(c)The Complainant meets the costs of this application.

RELEVANT BACKGROUND TO THE MOTION

3. The background relevant to this motion is as follows:-

*On 17/09/09 the Summons to a Person upon Complaint was filed. The complainant sought damages and other relief, arising out of words allegedly spoken by the defendant on the 26/05/09 at Madang that he alleges was defamatory in nature, and secondly for pain and suffering he alleged caused by the defendant assaulting him on the right forehead above the right eyebrow with a solid object.

*On 1/12/09 the SPM Mr. Seneka made an ex parte order against the defendant ordering her to pay K3000.00 to the complainant plus K100.00 costs and K100.00 interest forthwith in default warrant of execution be issued.

*On 15/12/09 the defendant’s lawyer Mr. Illaisa filed a Notice of Motion pursuant to s.25 of the District Court Act, to set aside the ex parte orders of 1/12/09 against the defendant.

*On 28/01/10 Mr. Illaisa filed the defendant’s submission.

*On 15/02/10 the complainant’s lawyer, Mr Tabai filed the complainant’s submission in response to the defendant’s notice of motion.

*On 3/03/10 the complainant filed a submission in reply to the defendant’s submission.

*On 8/03/10, Mr. Seneka granted the defendant’s application to ste aside the ex parte order of 1/12/09. The defendant sought an adjournment to file a Notice of Intention to Defend and Cross-Claim and this was granted.

*On 9/03/10 the defendant filed the Defence and Cross-Claim.

*On 15/03/10 the defendant filed a Notice pursuant to section 35 of the Evidence Act

*On 19/03/10 Maria Sikali filed an affidavit in support of the complainant.

*On 19/03/10 the complainant filed a Response to the Defendant’s Cross Claim.

*On 22/03/10 the defendant sought leave of court to file an amended Defence and Cross-Claim and leave was granted and the Complainant was also directed to file a Defence to the Cross-Claim upon receipt of it.

*On 22/03/10 the defendant filed an amended Defence and Cross-Claim

*On 30/03/10 the defendant filed a Notice of Motion seeking to dismiss the proceedings accompanied with affidavits in support by herself and her lawyer and the Motion was set to 6/04/10 to be moved.

*On 6/04/10 Mr. Sareng adjourned the matter to 27/04/10 for mention.

*On 6/04/10 the Complainant filed a Reply to the Amended Defence and Cross-Claim.

*On 27/04/10 I took carriage of the matter and Mr. Illaisa was sick so the matter was adjourned to 11/05/10 with consent.

*On 11/05/10 Mr. Illaisa moved the defendant’s motion and matter was adjourned to 18/05/10 for mention to allow both counsels to file their submissions on the Notice of Motion.

*On 18/05/10 the Court was not in receipt of the submissions by counsels and matter adjourned to 25/05/10 for Ruling.

*On 18/05/10 the defendant filed their submission.

*On 25/05/10 both parties present but both counsels were not and matter further adjourned to 31/05/10 for Ruling on Notice of Motion and Clerk of Court directed to inform both counsels of the adjournment date.

4. There are some facts that emerge from that background

*the pleadings in this case were closed on 6/04/10 when the complainant filed a Reply to the defendant’s Amended Defence and Cross-Claim.

*the complainant did not file a submission on the Notice of Motion that was moved on the 11/05/10.

RELEVANT CONSIDERATIONS 

5. It is necessary for the Court to be properly informed as to the definition of slander of title so as to know whether it has jurisdiction in the matter. Secondly it is necessary for the Court to consider properly the nature of the evidence of both parties and whether or not the rules have been complied with, in order to decide whether or not to dismiss the matter at this stage of proceedings

RELEVANT LAW

6. There are relevant legislations that I refer to as follows:-

DISTRICT COURT ACT 1983

21. CIVIL JURISDICTION.

(4) A Court has no jurisdiction in the following cases:–

(a) where the validity or effect of a devise or bequest or a limitation under a will or settlement, or under a document in the nature of a settlement, is in dispute;

(b) the infringement of trade names;

(c) an action for or in the nature of slander of title;

(d) an action for illegal arrest, false imprisonment or malicious prosecution;

(e) for seduction or breach of promise to marry;

(f) when the title to land is bona fide in dispute.

141. WHEN FACTS NOT ADMITTED.

If the defendant does not admit the truth of the complaint, the Court shall proceed–

(a) to hear the complainant and such witnesses as are examined on his behalf, and such other evidence as is adduced in support of the complaint; and

(b) to hear the defendant and such witnesses as are examined on his behalf, and such other evidence as is adduced in his defence; and

(c) to hear such witnesses as the complainant examines in reply, if any evidence has been given on behalf of the defendant.

RELEVANT ISSUE 

7. The relevant issues arising are twofold:-

(a) Is the defendant claiming for slander of title? If the answer is Yes then the matter should be dismissed. If the answer is No then the next question should be addressed.

(b) Should the complainant’s claim be dismissed at this stage of proceedings for want of evidence pursuant to s.22 of the District Courts Act? If the answer is Yes then I will consider the merits of the cross-claim. If the answer is No then a date should be set down for trial of the substantive matter.

8. I will now consider the merits of the motion.

(a)Is the defendant claiming for slander of title? If the answer is Yes then the matter should be dismissed. If the answer is No then the next question should be addressed.

9. Slander of title is a tort, the elements of which are intentionally casting an aspersion on someone’s property; if you are selling your house and someone says that it is full of termites you can sue them for the tort of slander of title.

10. Wikipedia the free encyclopedia on internet that anyone can edit defines slander of title in the following terms:-

In law, slander of title is normally a claim involving real estate in which one entity falsely claims to own another entity's property. Alternatively, it is casting aspersion on someone else's property, business or goods, e.g. claiming a house is infested with termites (when it is not), or falsely claiming you own someone else's copyright (what allegedly occurred in the SCO v. Novell case). Slander of title is a form of jactitation.[1]

Slander of title is a one of the "specialized" Common law intentional torts. The State of California has adopted the definition of slander of title set forth in section 624 of the Restatement of Torts reading as follows: "One who, without a privilege to do so, publishes matter which is untrue and disparaging to another's property in land, chattels or intangible things under such circumstances as would lead a reasonable man to foresee that the conduct of a third person as purchaser or lessee thereof might be determined thereby is liable for pecuniary loss resulting to the other from the impairment of vendibility thus caused."

The term slander of title is somewhat of a misnomer as slander refers to that which is spoken yet the tort slander of title requires publication. A more accurate term would be "disparagement of title"

A slander of title suit can be pursued with merit in a variety of circumstances including but not limited to" the filing of an invalid lien against real property or virtually any type of recordable instrument recorded against a property by one without privilege which is untrue....It is not a requirement that it be recorded merely published, and in the broadest sense of the word. Published can ever refer to the placement of a lawn sign in front of someone's property upon which is conveyed an untrue disparaging statement.

11. In the immediate matter I find therefore that the application to dismiss proceedings by the defendant on the basis of slander of title is misconceived if for two reasons:-

(a)The reason for the said application is based on the wrong premises when considered against the definition of the tort of slander of title. This definition has nothing to do with the title of a person be it in relation to his occupation, his position or whatever humanly titles we give to a person on the contrary it has to do with something completely different, and that is property in land, chattels or intangible property i.e. a building, a car, a ship etc.

(b)I find as well that the complainant’s claim is not based on his professional capacity but rather on his personal reputation.

12. I answer issue (a) in the negative (no). I will now address the next issue

(b)Should the complainant’s claim be dismissed at this stage of proceedings for want of evidence pursuant to s.22 of the District Courts Act? If the answer is Yes then I will consider the merits of the cross-claim. If the answer is No then a date should be set down for trial of the substantive matter.

13. I highlight this issue by listing the following considerations:-

(i) Has pleadings closed in this matter?

(ii) Has a trial date been set down?

(iii) Is this a claim under s.156 or s.141?

(iv) Do the parties give diametrically different versions of events?

(v) Is there a need to call witnesses to give oral evidence in order to assess the veracity of their evidence and then make a decision and finding of fact?

14. I answer these considerations in the following manner:-

(i) I consider that pleadings in this case were closed on 6/04/10 when the complainant filed a Reply to the defendant’s Amended Defence and Cross-Claim.

(ii) Order 10 rule 5 of the National Court Rules creates an obligation on the part of the plaintiff to set the proceedings down for trial within 6 weeks. It provides that, "Where the plaintiff does not, within six weeks after the pleadings are closed, set the proceedings down for trial, the Court, on motion by any party, may on terms, dismiss the proceedings or make such other orders as the Court thinks fit". In Dogoli v Laho (1) Sawong J held that the practice now is that, no Notice to Set Down for Trial will be filed unless it is endorsed or consented to by both parties. That this was to ensure that both parties have agreed that the matter is ready for trial after the completion of pleadings and interlocutories.In this matter no date has been set down for trial as consented to by both parties.

(iii) It is evident from the Summons and Complaint that was filed that this is not a claim under s.156 of the District Courts Act and therefore the provisions of s.141 of the District Courts Act automatically apply. This provision provides that when facts are not admitted the Court shall proceed to hear the complaint, the defendant and their witnesses. This provision is a mandatory one. In the matter of PNG Forests Products and Inchape Berhad v The State and Genia, Minister for Forest (2) Sheehan J held inter alia that "A party has a right to have his case heard, as guaranteed by the Constitution and the laws of this country. Such a right cannot be lightly set aside. Hence, the National Court Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. For the same reasons and in the interest of justice, the rules include prohibitions against the abuse of the court process. Further that our judicial system should never permit a plaintiff or a defendant to be "driven from the judgment seat" in a summary way, "without a Court having considered his right to be heard". (iv) I note from the affidavits that have been filed both for the complainant and the defendant that they give diametrically opposed versions of events in so far as liability is concerned.

(v) I consider that to make a clear decision on the injuries suffered and the defamatory words allegedly spoken there will be a need to call witnesses to give oral evidence in order to assess the veracity of their evidence and then make a decision and finding of fact. 

15. In view of the above answers I answer issue (b) in the negative (no), I will not dismiss the complainant’s proceedings for a want of evidence and will set a date down for trial with consent of both parties to expedite the trial.

DETERMINATION

16. In view of the above I strike out the application for the reasons that I find it to be premature and misconceived. 

17. No orders for costs are made.

Tabai Lawyers for the Complainant
Illaisa Lawyers for the Defendant 

_______________________________
(1)[2005] N2885 (19/07/05)
(2) [1992] PNGLR 85 His Honour cited Fletcher Moulton LJ in Dyson v Attorney General [1911] 1 KB 410 at 414, 419.