DC8036
PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE
CIVIL JURISDICTION
CV 03 OF 2022
Between:
RUBEN YALU
Complainant

And:
HEBERT YALU
Defendant

Koroba: E. Komia (SM)
17th February 2022

CIVIL CLAIM – claim for returning of building materials – house belonging to parties’ sister - claimant claiming unfairness in distribution of building materials – claimant alleges father siding with his other son – matter adjudicated in community – continuous disagreement resulting in claim.

COURT ANNEXED MEDIATION – powers of the court – principles of mediation – whether mediation is the proper mode –whether the complainant has made out a claim founded in law – whether court annexed mediation is proper where there is no proper cause of action. 

PRATICE AND PROCEDURE – proper cause of action – frivolous and vexatious proceeding – no proper cause of action – proceeding dismissed – no basis for court annexed mediation when proceeding dismissed.

Legislations

Customs Recognition Act Ch. 19

Papua New Guinea cases cited
PNG Forest Products and Inchcape Berhad v The State and Genia, Minister for Forest [1992] PGLawRp 573; [1992] PNGLR 85 (4 March 1992)
Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8

A.	INTRODUCTION

1.	Complainant is the brother of the defendant who seeks orders from this court to order the defendant to return some building materials that were collected after demolishing their sisters house. The parties’ sister lives in Port Moresby, and had instructed their father to remove her old house and use the same materials to build their fathers house, since their father was now an old man. The complainant claims that he was never made aware of the arrangement, and he seeks orders for the materials to be returned to him.

B.	FACTS.

2.	The complainant is the only son born out of the wedlock of his mother and father. The defendant is one of the three sons born to the complainant’s fathers second wife. The complainants mother and defendant’s mothers are sisters.

3.	The complainant has about seven sisters, and one of her sisters who now resides in Port Moresby had built a house some time back but had not been using it since. 

4.	The father of the complainant and the defendant, one Steven Yalu requested his daughter if he could strip the building down and use the materials to build a much smaller house for himself, as he was growing old, and he needed an accommodation to live in.

5.	Since he was an old man, the defendant assisted him to remove the house and erect a new one for the father on a different location. That different location was on the land that the first defendant has custody and user rights over, after the second defendant had shared his land between his sons. At around the same time, the first defendant had also demolished another kunai house that was the family’s men house (haus man) built on the complainant’s land.

6.	The complainant was not happy when the building was erected on the defendants land and argued with the defendant to remove the building built using the sister’s old house’s materials, and have it all returned to him, as she was her biological sister and not the defendant’s biological sister. He claimed that the defendant was from the second wife and the material belonged to his sister, whom they were from the same mother.

7.	The village leaders in Koroba dealt with the complainant’s grievances, and advised parties to keep the peace and for the first defendant to return the building materials that they collected after pulling down the old kunai house. There was no deliberation on the semi-permanent house, as it was found that Steven Yalu rightfully acted on his daughter’s instruction.

8.	The village leaders’ decision was simple. They advised the defendant and complainant to respect themselves, and live on the land that they have been demarcated and allowed to use and possess by their father.

9.	During the first hearing on 17th February 2022, the court noted that the claim was founded on some ill feeling and disagreements that emanated from the decision by the second defendant to build on the first defendants land. The court then adjourned this matter to today, 22nd February 2022 for parties to go home and discuss their differences at home and return to court and advise of the consensus or understanding they reached. 

10.	Parties failed to negotiate and come up with a probable solution and returned to court and blamed each other for not negotiating openly and discussing this issue. They returned to this court and requested this court to conduct mediation for this claim. This court is now faced with the task of deciding whether this matter should effectively proceed to a court annexed mediation or simply strike the information contained in the summons out for lack of sufficient pleading.

C.	ISSUE

11.	As I have stated above, there are two issues that this court is faced with currently. These issues are whether this matter should proceed by way of a court annexed mediation to settle the dispute between the parties? And if so, for the proceeding to have basis to stand so as to allow mediation to proceed, is there a cause of action in law, which would form the basis of the proceeding to stand, so as to allow mediation to proceed.

D.	WHETHER THERE IS A PROBABLE CAUSE OF ACTION AND WHETHER THERE SHOULD BE AN ORDER FOR COURT ANNEXED MEDIATION.

12.	The complainant submitted that his claim was founded on custom, claiming that the first defendant has no right to build Steven Yalu’s house on his (defendant’s) land. The defendant submits that the land is his, and his father had already demarcated it to his children, and where he builds his father builds his house should not be an issue, as he is the principle custodian and user of the land by virtue of his customary ties to the land.

13.	The complainant towards his closing remarks invited the court to mediate over this issue if there was no proper way for this court to deal with the matter. This was after the court highlighted to the complainant the nature of his claim, and raised inquiries on whether that customary practice he was relying on was logical.

14.	The defendant submits that he only assisted their father because he needed help, and since he was his son, he felt obliged to help him. He said that he did not have any issue with the complainant and is nonplussed in being summoned to appear in court.

15.	The complainant’s basis of the claim is more or less based on the presumption that since he is the immediate brother of the sister who owned the house, he should have been part of the demolition and reconstruction of the house.

16.	The defendant argued that Steven Yalu is their father and head of the family and as far as the history of the family is concerned, there has been no quarrel or argument between his children from both his father’s marriages. He is weary of the fact that there may be some unknown persons who are fueling the arguments amongst his children.

17.	The defendant further submits that he is the son of Steven Yalu, and the brother of the complainant and he has no issues with his brothers. He stated that he has returned the materials and the nails from the village hut that was taken down. Further to that, he also mentions that the house was built with his assistance upon the request of his father who is an old man, and that he has no issues with the returning of the building materials.

18.	After examining the complainants claim, I find that the proceeding is seemingly based on a cause of action that is not proper in law. The pleadings do not disclose a cause of action. The law is such that a statement of claim or complaint filed by a complainant must plead sufficient cause of action. The question I ask myself is whether the complainants claim makes out a proper cause of action.

19.	If the complaint does not show sufficient pleading, then the information contained in the summons that forms the basis of the claim must be struck out. This then raises an issue of whether there can be a mediation ordered by the court to deal with the dispute as submitted by the complainant, even if the basis of that dispute is a mere dispute between family members which can be resolved in the communal setting.

20.	This is an important area of litigation that this court needs to address in dealing with such disputes where the pleadings do not disclose sufficient pleading. I am fortified in my opinion that, if a mediation is to be ordered, which is subject to a proceeding that is before the court, such as it is in this matter, after the court finds that the complaint is seemingly baseless and does not hold water to show a proper cause of action, then the proceeding must be dismissed.

21.	Order 12 Rule 40 of the National Court Rules 1983 is the rule that applies to proceedings that are frivolous and vexatious, whilst Order 8 Rule 27 of the NCR also applies to similar proceedings who disclose no reasonable cause of action.

Order 12 Rule 40 reads:

“(1) Where in any proceeding 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; 
(b)	the proceedings are frivolous or vexatious; or
(c)	the proceedings are an abuse of the court process of the court,
the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceedings. 
(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1) of this Rule.”

22.	In our jurisdiction, there are many precedence on cases that have been dismissed for being frivolous and vexatious, and the case of PNG Forest Products and Inchcape Berhad v The State and Genia, Minister for Forest [1992] PGLawRp 573; [1992] PNGLR 85 (4 March 1992) is the case on point where Sheehan J stated that;

“There is a long line of history of decided cases where one party or another has sought to strike out the proceedings of an opponent to obviate the need for trial. As long ago as 1887 in Republic of Peru v Guano Company (1887) 36 Ch D 489, Chitty , J said:

“if not withstanding defects in the pleading, … the Court is of the view that a substantial case is presented the Court should, I think, decline to strike out the pleading: but when the pleading discloses a case which the court is satisfied will not succeed, then it should strike it out and put a summary end to the litigation.””

23.	What constitutes an abuse of process is determined on facts of each case and there is no set criteria. There have also been definition of such, as set out in the vase of Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8, where His Honour, Sevua J defined frivolous and vexatious by adopting the definitions in the text, Supreme Court Civil Procedure New South Wales, 2nd Edition, by Young, O’Leary & Hogan, 1987, Butterworths, at pp 130-133 as follows:

“” Frivolous”, by its ordinary meaning means, “not worth serious attention or manifestly futile.” Proceeding which disclose no reasonable cause of action as well as proceedings which are otherwise unsustainable are frivolous in this sense. In its ordinary meaning, “vexatious” means, causing vexation or harassment.” It is used to describe the harassment of a defendant being put to the trouble and expense of defending proceedings which are either a mere sham, or which cannot possibly succeed. As to abuse of process argument, it is said on p131 that the use of Court process to pursue proceedings which disclose no reasonable cause of action, or which disclose no reasonable cause of action, or which are frivolous or vexatious, is clearly an abuse of process.”” 

24.	The facts of this case show ambiguity in the pleadings. What I find hard to understand in this case is the complainant’s argument that he is the brother of the defendant’s daughter, and that he should have a say in the manner in which the demolition of the sister’s house, and the use of those materials from the demolished house to build a new house for his father. This to my mind is a pleading that has no basis. It is vexatious and can be categorized as a convoluted cause of action.

25.	I am of the view that the complainant has not made out a good case. He neither has any right to sue for the building materials, nor does he have the authority to oversee the demolition and erection of the new house using the building materials belonging to his sister. It is plain fact that does he does not own the demolished house. His main argument is that he is the immediate brother of the sister that authorized for the demolition of the house and as such, he should be in the forefront supervising and ensuring the materials are properly used.

26.	That argument is a lame and sham argument. Whilst it may be in a customary law setting, I am fortified in my opinion that in circumstances where those issues require collective family decision such as land, then the clans and families have a collective say. 

27.	On the contrary, no one family member should presume ownership and dictate matters over issues that they are not authorized to do so regarding personal properties or an interest in rem. It is the owner of the property that must give the authorization. This claim by the complainant basing on what he submits is based on Huli custom must never be allowed to stand. Such customs that are contrary and repugnant to the general principles of humanity and must be shunned from being enforced, and discouraged at the highest degree by courts, as it allows for one to assume control and ownership over things that he does not have proper authority and control over.

28.	The Customs Recognition Act (Ch.19) gives this court the jurisdiction in considering custom when deciding over matters concerning issues relating to customary land, in or on the customary land, and in connection with the customary land. 

29.	Given the dismissal of the proceeding, the courts can never order mediation to proceed as a court annexed mediation, as the proceeding is dismissed and there is no basis for the mediation to be held. Court annexed mediations are subsequently stemmed from a legal proceeding that is before a court. If the proceeding is dismissed, there can be no court annexed mediation. The court is only protecting itself in ensuring that proper suits and complaint are filed and brought before the courts for determination.

30.	It is also important to note that, whilst the proceeding is dismissed because of the reason that the proceeding is frivolous and vexatious, there is no way in which the court can order for mediation after finding that the basis of the proceeding is frivolous or vexatious. The safest thing this court must do is to dismiss the proceeding, and I am inclined to do so. Whether parties have this matter mediated or not outside the ambit of this court is a matter that is a discretionary matter on the part of the complainant or defendant, or both if they intend it to be so.

THE COURT HEREBY ORDERS THAT:
1.	This proceeding is dismissed in its entirety.

2.	Parties are at liberty to have this matter mediated by the local leaders of Koroba should there be any need to do so.

3.	Time for the entry of this order is abridged.
BY THE COURT
Senior Magistrate Mr. E. Komia