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Kama v Wereh [2019] PGNC 235; N7926 (2 July 2019)

N7926

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 678 OF 2016

BETWEEN
PETER KAMA as the Managing Director
of Homeland Joint Venture Ltd
First Plaintiff

AND
HOMELAND JOINT VENTURE LIMITED
Second Plaintiff

AND
DAVID WEREH as the
Secretary for Department of Works
First Defendant

AND
ISSAC LUPARI as the Chief Secretary
of the Independent State of Papua New Guinea
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Dingake J
2018: 6^th April, 1^st & 5^th September, 19^th October
2019: 7^th February, 7^th March,
9^th April & 2^nd July

PRACTICE AND PROCEDURE – application to dismiss proceedings for not disclosing a reasonable cause of action - in order to disclose a reasonable cause of action the pleadings in any claim must set out the legal ingredients of the claim and the facts that support such a claim - plaintiffs’ pleadings/statement of claim is incontestably and irredeemably bad, and fails to disclose a reasonable cause of action – proceedings are dismissed - Order 12, Rules 1 and 40(1), (a), (b) and (c) of the National Court Rules , Section 148(2) of the Constitution

Cases Cited:

PNG Forest Products Pty Ltd and Another v The State and Genia (1992) PNGLR 85;
Kerry Lerro trading as Hulu Hara Investments Ltd v Philip Stagg as Chairman of Central Tenders Board and Valentine Kambori as the Secretary for National Planning and Rural Development and The Independent State of Papua New Guinea (2006) N3050);
David Lambu v Paul Paken Torato (2008) SC953;
Kerry Lerro v Phillip Stagg & Ors (2006) N3050;
Philip Takori v Simon Yagari (2008) SC905.

Counsel:

Mr. T Kuaia, for Plaintiffs
Mr. W Mapiso, for Defendants

02^nd July, 2019

1. DINGAKE J: This is an application to dismiss the proceedings brought by the plaintiffs for want of a reasonable cause of action, pursuant to Order 12, Rules 1 and 40(1), (a), (b) and (c) of the National Court Rules and Section 148(2) of the Constitution of the Independent State of Papua New Guinea.
2. In the alternative, the applicants, pursuant to Section 9(a) of the Claims By and Against the State Act 1996, pray that they be allowed further extension of time to file and serve their defence to the plaintiffs’ claim within 14 days from the date of the Order.
3. The plaintiffs’ claim is one of defamation.
4. The plaintiffs in their statement of claim allege that the first and the second defendants, particularly the first defendant, (the then Secretary for the Works Department, Mr. Joel Luma), published in two national daily newspapers and also in an address to Mainini Landowners Association defamatory statements that demean the status of the plaintiff, and or otherwise cast them in bad light, as particularized in the plaintiff’s statement of claim.
5. The published statements alleged to constitute defamatory imputation appear in quotes at paragraph 17, 18 and 20 of the plaintiff’s statement of claim. I do not consider it necessary to particularise same, for the purposes of this ruling, but I have taken them into account.
6. At paragraph 24 of the statement of claim the plaintiffs aver that the alleged defamatory remarks, referred to earlier, were malicious, made in bad faith, constituted unfair comment, were not true and were made without authority and delegation of the Minister of Works.
7. In consequence of the alleged injurious defamatory remarks, the plaintiffs aver that they suffered loss and damages as particularized in the statement of claim.
8. In my mind, in order to successfully invoke Order 12, r.40 of the National Court Rules, namely that the plaintiff’s claim does not disclose a reasonable cause of action, the defendants must aver and show that the plaintiffs’ claim does not set out in its pleadings, a right, known in law, that has been breached, and the necessary facts that give rise to the vindication of that right. Put differently, in order to disclose a reasonable cause of action the pleadings in any claim must set out the legal ingredients of the claim and the facts that support such a claim. (Kerry Lerro v Phillip Stagg & Ors (2006) N3050; Philip Takori v Simon Yagari (2008) SC905).
9. In a defamatory suit, three key elements must be pleaded, namely:

9.1 The defendant made a defamatory imputation in relation to the plaintiff;

9.2 The defendant published it and;

9.3 The publication was unlawful in that it was not protected, justified and excused by law (David Lambu v Paul Paken Torato (2008) SC953).

10. In this case, the statement of claim is fairly clear that the then Secretary of Department of Works caused to be published alleged defamatory statements in two daily papers and also in a letter addressed to Mainini Landowners Association.
11. Significantly, for the purposes of this application, the plaintiffs do not aver that the publication was unlawful in that it was not protected, justified or excused by law.
12. Such an averment would be particularly necessary having regard to Section 5 of the Defamatory Act which provides that:
    • “5. Publication of defamatory matter prima facie unlawful.
      • It is unlawful to publish defamatory matter unless the publication is protected, justified or excused by law.”
13. The preponderance of our jurisprudence in Papua New Guinea enjoins the Courts not to be too quick to drive any litigant from the judgment seat in a summary manner without considering such party’s right to be heard. (PNG Forest Products Pty Ltd and Another v The State and Genia (1992) PNGLR 85; Kerry Lerro trading as Hulu Hara Investments Ltd v Philip Stagg as Chairman of Central Tenders Board and Valentine Kambori as the Secretary for National Planning and Rural Development and The Independent State of Papua New Guinea (2006) N3050).
14. However, it is perfectly in order to drive a litigant from the judgment seat whose pleadings fall short of the minimum the law requires of him in any particular claim, in order not only to protect and safeguard the Court against any possible abuse of its processes but also to achieve fairness in ensuring that every claim before the Court meets the minimum requirements imposed by law.
15. Having read the plaintiff’s statement of claim, and having had regard to the strictures of the law not to be too quick to drive a party from the judgment seat, and also the key elements that must be pleaded in a claim based on defamation, I am satisfied that the plaintiffs’ pleadings/statement of claim is incontestably and irredeemably bad, and fails to disclose a reasonable cause of action.
16. In my mind the statement of claim as it currently stands, is insufficient, and even if proved, it cannot entitle the plaintiffs to what they pray for.
17. In my mind the above grounds on their own are sufficient to dismiss the plaintiffs’ proceedings on the ground that no reasonable cause of action has been disclosed.
18. However, even if I were wrong to conclude as I have done above, I would still be inclined to dismiss the proceedings on the basis that the plaintiffs, in their statement of claim, failed to allege that the defendants in their respective official duties committed a wrong of which the State is liable in terms of Section 1(a) of the Wrongs (Miscellaneous Provisions) Act. In my considered opinion, failure to so allege, renders the proceedings an abuse of Court process pursuant to Order 12 Rule 40 (1) of the National Court Rules.
    
19. In the result and for one or all of the above reasons, the plaintiffs’ proceedings are dismissed with costs.

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Gagma Legal Services: Lawyers for the Plaintiff
Guardian Legal Services: Lawyers for the Defendant