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National Court of Papua New Guinea |
N8910
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 634 OF 2018
BETWEEN
KEVIN RARUA as next of kin of RARUA HENAO (deceased) for himself and on behalf of all direct descendantsof GAIGO RESENA (deceased)
of NAURINA Clan of TATANA village, National Capital District, See attached Schedule List of Names
Plaintiffs
AND
TATANA ARAIRA DEVELOPMENT ASSOCIATION
First Defendant
AND
BARUNI COMMUNITY DEVELOPMENT ASSOCIATION
Second Defendant
AND
BALTIMORE NO. 39 LIMITED
Third Defendant
AND
CURTAIN BROS HOLDINGS (NG) LIMITED
Fourth Defendant
AND
MOTUKEA INTERNATIONAL TERMINAL LIMITED
Fifth Defendant
AND
SOUTH PACIFIC INTERNATIONAL CONTAINER TERMINAL LIMITED
Sixth Defendant
AND
PNG PORTS CORPORATION LIMITED
Seventh Defendant
AND
ALA ANI, as the ACTING REGISTRAR OF TITLES
Eighth Defendant
AND
SAM WENGE as CHAIRMAN OF THE LAND BOARD
Ninth Defendant
AND
BENJAMIN SAMSON as the ACTING SECRETARY FOR LANDS & PHYSICAL PLANNING
Tenth Defendant
AND
JOHN ROSSO as the MINISTER FOR LANDS & PHYSICAL PLANNING
Eleventh Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Twelfth Defendant
Waigani: Makail J
2021: 24th June & 02nd July
PRACTICE & PROCEDURE – Application to dismiss for want of prosecution – Delay – Period of one year and six months –Reasonable explanation for delay – Pleadings not closed – National Court Rules – Order 10, rule 5
PRACTICE & PROCEDURE – Application to dismiss for failing to disclose reasonable cause of action and abuse of process – National Court Rules – Order 12, rule 40(1)(a) &(c)
PRACTICE & PROCEDURE – Class action – Representative action – Authority to commence proceeding – List of names of intended plaintiffs attached as schedule to writ – National Court Rules – Order 5, rule 13(1)
Cases Cited:
Tani v. MVIL (2010) N3984
Kerry Lerro trading as Hulu Hara Investments Ltd v. Philip Stagg, Valentine Kambori & The State (2006) N3950
Philip Takori v Simon Yagari (2007) SC905
George Solomon v. David Raim (2020) N8428
Rage Augerea & Maureen Augerea v. Bank South Pacific Limited (2007) SC869
Anisi v. Nikent (2018) N7564
Tigam Malewo v. Keith Faulkner &Ors (2009) SC960
Simon Mali v. The State (2002) SC690
Medaing v. Ramu Nico Management (MCC) Limited (2010) N4158
Tom Amaiu & Ors v. Thomas Yalbees & Ors (2020) SC2046
Counsel:
Mr. R. Tuva, for Plaintiffs
No appearance, for First &Second Defendants
Mr. P. Tabuchi, for Third & Fourth Defendants
No appearance, for Fifth, Sixth & Eighth to Eleventh Defendants
Mr. M. Boas, for Seventh Defendant
Ms. P. Ohuma, for Twelfth Defendant
RULING
02nd July, 2021
1. MAKAIL J: This is an application to dismiss this proceeding for want of prosecution or in the alternative, for failing to disclose a reasonable cause of action and abuse of process pursuant to Order 10, rule 5 and Order 12, rule 40(1)(a) & (c) of the National Court Rules (“NCR”) respectively.
Want of prosecution
2. The material facts in order of chronology which are not contested, are:
3. Base on case law the third and fourth defendants bear the onus to prove that there has been an inordinate or inexcusable delay in the prosecution of the matter, there is no reasonable explanation for the delay and the delay has caused injustice or prejudice to the defendants. Conduct of the parties and overall interest of justice may also be taken into account: Tani v. MVIL (2010) N3984.
4. The third and fourth defendants submitted that the plaintiffs are required to set the matter down for trial six weeks after the pleadings have closed. After they filed their defence to the original writ and statement of claim on 7th August 2018, pleadings have closed. However, the plaintiffs failed to set the matter down for trial six weeks after the pleadings have closed.
5. They further submitted that there has been no explanation for the delay and the delay has prejudiced the third and fourth defendants in their defence of the action.
6. The plaintiffs pointed out that the matter could not be set down for trial because while the third and fourth defendants have filed a defence to the original writ and statement of claim, they and all the other defendants have not filed an amended defence to the amended writ or further amended writ and statement of claim. Significantly, default judgment process and relief is not available to an action of fraud such as in this case and they are restricted from applying for default judgment to then pave the way to set the matter down for trial on assessment of damages.
7. Furthermore, they submitted that it is not a case of inordinate delay but a steady progress of activity, the last being the filing and serving of the further amended writ and statement of claim on 26th November 2019 and computing time from that date to the date of filing of this application is about one year and six months of delay and it has been sufficiently explained.
8. I agree with the plaintiffs that the period of delay should run from the date of filing the further amended writ and statement of claim on 26th November 2019 to date of filing of this application of 7th May 2021. On the other hand, to calculate the period of delay from the date of original writ and statement of claim to date of filing of application would not be correct because there had been a series of activities (filing of defence and amended writ) until 26th November 2019 when the plaintiffs filed a further amended writ and statement of claim.
9. After that, it appears that there has been a confusion between the plaintiffs and the defendants in relation to whether the matters should be set down for trial. The plaintiffs had been awaiting the defendants to file amended defence to the further amended writ and statement of claim while the third and fourth defendants considered that it was not necessary for them to file and serve an emended defence.
10. Technically, the pleadings have not being closed and the plaintiffs are correct to say that they were restricted from setting the matter down for trial until the defendants file and serve their amended defence: see Order 10, rule 4 of the NCR. Similarly, as it is an action based on fraud, default judgment is not available to them pursuant to Order 12, rule 37(b) of the NCR.
11. On the other hand, the contention by the third and fourth defendants that notwithstanding the failure by the defendants to file an amended defence, it does not displace the duty of the plaintiffs to set down the matter for trial also has not merit.
12. I consider that both sides’ arguments have merits and they go to demonstrate that this is not a case where the plaintiffs have failed to prosecute the matter. Technically, the pleadings have not closed and this has delayed the matter from being set down for trial. The plaintiffs’ lawyers’ lack of communication with the lawyers for the defendants to notify them of their failure to file their respective amended defence and possibility of progressing the matter to trial also contributed to the delay.
13. In the end, the delay has been satisfactorily explained. Finally, it has not been shown how the defendants have and will be prejudiced by the delay in the prosecution of this matter.
14. For these reasons, the application to dismiss the proceeding for want of prosecution is dismissed.
No reasonable cause of action
15. The general rule is that the Court’s power to dismiss or strike out a proceeding is discretionary and must be exercised having regard to the public interest to finality to litigation and equally preserving the right of the plaintiff to litigate and not to shut out or have the plaintiff “driven from the judgment seat” in a summary way: Kerry Lerro trading as Hulu Hara Investments Ltd v. Philip Stagg, Valentine Kambori & The State (2006) N3950 and cited with approved by the Supreme Court in Philip Takori v. Simon Yagari (2007) SC905 and recently referred to by Narokobi J in George Solomon v. David Raim (2020) N8428 in an application to dismiss under Order 12, rule 40(1) of the NCR.
16. The discretion may be exercised against dismissal of a proceeding even where there is lack of particulars or lack of proper pleadings to identify the cause of action. Where there is an opportunity, the plaintiff should be allowed to have the deficiencies cured by appropriate amendments to the pleadings: Kerry Lerro case (supra), and Philip Takori v. Simon Yagari (supra) and Rage Augerea & Maureen Augerea v. Bank South Pacific Limited (2007) SC869.
17. The third and fourth defendants submitted that if the plaintiffs are relying on fraud and misrepresentation as the causes of action to set aside the title under consideration, they have failed to provide particulars of the fraud and misrepresentation. The pleadings in its current form does make reference to “Particulars of Fraud/Misrepresentation” but is insufficient and does not assist or enable the defendants to know what case they are called upon to meet and to answer intelligibly: Anisi v. Nikent (2018) N7564.
18. The plaintiffs submitted that the pleadings sufficiently identified the cause of action as being one of fraud and misrepresentation and the defendants know what case they are to meet and answer. It is about the procurement of title of a piece of land by fraud and misrepresentation.
19. I note that where the ground for dismissal or strike out of a proceeding is based on failure to disclose a reasonable cause of action, the defendants must establish that the pleadings fail to identify a cause of action. With this in mind, I note the following allegations pleaded in a total of 32 paragraphs of the further amended statement of claim:
(1) Paragraphs 1 to 13 simply introduce the parties and in the capacity they are suing and being sued.
(2) Paragraphs 15 to 23 refer to the historical and heritage significance of the disputed land and the proclamation of the disputed land by Her Most Gracious Majesty Queen Victoria on 6th November 1884 for its protection for the “lives and properties of the native inhabitants of New Guinea.......” and its application to date and further reinforced by Section 53 of the Constitution and Section 7 of the Pacific Islanders Protection Act, 1875. Interestingly, attempts were made by the colonial administration in 1950 to purchase customary land within the precincts of the National Capital District land boundary to expand the precincts of the city of Port Moresby but it never reached finality.
(3) Paragraph 24refers to disputes among the various customary landowners from Tatana and neighbouring villages which ended up in the Local Land Court and Provincial Land Court including the National Court for hearing since 1996.
(4) Paragraphs 25 to 26 bring the State parties being the Department of Lands and Physical Planning and National Land Board into the dispute because of their involvement in facilitating and granting of approval for allocation of various portions of the customary land for various developments from Koki to Napana Oil Refinery waterfront areas.
(5) It is from paragraphs 27 to 31 where the thrust of the case is found where allegations of fraud and misrepresentation are made against the defendants, though in a longwinded and convoluted way. They may be very briefly stated thus, a dispute on the ownership is pending at the Port Moresby Local Land Court and to some degree in the National Court. Without sorting it out first, the first and second defendants through their respective representatives held themselves out as landowners of the disputed land and signed an agreement described as shareholders agreement with the sixth defendant. This was done after the disputed land was acquired by the State without following the established procedure under Sections 10, 11, 12 and 13 of the Land Act, 1996. Among them is, there was no agreement signed by the customary landowners to part with the disputed land.
(6) In summary, the plaintiffs alleged that the statutory breaches under the Land Act to first acquire the disputed land from the customary land owners and when ownership is under dispute and pending before the relevant Courts and secondly, to enter into an agreement with the sixth defendant to occupy the disputed land and these series of events constituted fraud and misrepresentation.
(7) As to the relief, it would appear at paragraph 32(a) to (i) that the plaintiffs are not so much concern about the acquisition of the disputed land by the State and that is why they have not sought an order to have the acquisition quashed or set aside. Their concern is in relation to the agreement entered between the first and second defendants with the sixth defendant and the shareholders agreement entered into between the first and second defendants with the fifth and sixth defendants on 27th April 2018. That appears to be the reason for them to seek a declaration to nullify these agreements.
(8) A consequential order in the nature of declaration is also sought to direct any money including mesne profits paid by the third and fourth defendants to be paid into the National Court trust account pending the determination of ownership of the disputed land. Alternatively, they seek a declaration that they are landowners of the disputed land and other surrounding portions of land.
20. While the drafting of the further amended statement of claim is poor resulting in a long and being convoluted, the matters outlined above demonstrate that the pleadings are not incontestably bad such that the defendants are being called upon to defend a hopeless case and the only recourse is to have the proceeding struck out at this stage. On the contrary, there are enough facts to inform the defence that they faced allegations of fraud and misrepresentation and will have to defend them. Whether the allegations will be proved is a matter for trial.
21. As noted, the discretion of the Court to dismiss or strike out the proceeding will be exercised in favour of the defendants if they are able to establish a clear case that there is no cause of action pleaded in the further amended statement of claim. This is not the case here. The proceeding will not be dismissed for failing to disclose a reasonable cause of action.
Abuse of process
22. The third and fourth defendants submitted that the plaintiffs commenced a representative action. Thus, they were required to obtain an authority and consent in writing from each person listed in the schedule to the writ of summons prior to commencing this proceeding on their behalf.In this case, not everyone listed in the schedule signed it or gave their date of birth.
23. I note in the case of Tigam Malewo v. Keith Faulkner & Ors (2009) SC960; Simon Mali v. The State (2002) SC690 and Medaing v. Ramu Nico Management (MCC) Limited (2010) N4158 it was held that all intended plaintiff must be named and duly identified in the writ of summons or statement of claim endorsed on the writ and must give specific instructions evidence in writing to their lawyers to act for them and the person who commenced the proceeding must produce an authority to the Court to show that he was authorised by them to file proceeding as a class (representative) action.
24. Further, I note that there are names of 99 persons listed on the schedule to the further amended writ and statement of claim. In my view, for the purpose of the first requirement, the intended plaintiffs have been named in the list of the schedule to further amended writ and statement of claim. This is all that is required. There is no requirement for the plaintiffs to sign and state their date of birth.
25. Furthermore, I note that there is a statement in the further amended writ and statement of claim that the “undersigned adult descendants of Gaigo Resena (dec’d) through his only son Henao Gaigo (dec’d) gave our consent or approval to Kevin Rarua to represent our interest in this within proceedings”.
26. The point to make here is that, the above statement meets the two additional requirements for the intended plaintiffs to authorise the plaintiff Kevin Rarua in writing to commence this proceeding and if some of them did not sign or state their dates of birth, it does not constitute an abuse of process such that the proceeding ought to be dismissed.
27. The intended plaintiffs who have signed and stated their dates of birth in the schedule will be considered as authorising the lead plaintiff Mr Kevin Rarua to commence this proceeding and those who have not would be considered as “opting out”. This is perfectly within the scope of a class or representative action because of the multiple plaintiffs and mass interest or common interest the intended plaintiffs have as observed by the Supreme Court in the recent decision of 17th December 2020 in Tom Amaiu & Ors v. Thomas Yalbees & Ors (2020) SC2046 at paras. 21 to 26.
28. In summary, this is not a case where the lead plaintiff did not have the authority of the other intended plaintiffs to commence this proceeding. There is no abuse of process here and the proceedings will not be dismissed for being an abuse of process.
Order
29. The final orders of the Court are:
(3) The third and fourth defendants shall pay the plaintiffs’ costs of the proceeding, to be taxed, if not agreed.
Ruling and orders accordingly.
________________________________________________________________
Tuva & Associates Lawyers: Lawyers for Plaintiffs
Sannel Lawyers: Lawyers for First & Second Defendants
Young & Williams Lawyers: Lawyers for Third & Fourth Defendants
Allens Lawyers: Lawyers for Fifth Defendant
Kuman Lawyers: Lawyers for Seventh Defendant
Solicitor General: Lawyers for Twelfth Defendant
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URL: http://www.paclii.org/pg/cases/PGNC/2021/186.html