N10584

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 555 OF 2022

BETWEEN:
JAMES KUBA, JACOB KOALE, ABROSE VETATA, FRANCIS LIGA, and EBERT TAUMOSI for themselves and on behalf of IBANA INCORPORATED LAND GROUP (ILG) made up of the Ablimosi Kasia, Nagoa, and Abunava customary clans of Ulamona village
Plaintiffs

V

GRAHAM KING, Manager in the time being of Hargy Oil Palms Limited
First Defendant

AND
HARGY OIL PALMS LIMITED
Second Defendant

Kimbe: Anis J
2023: 21st & 24th November

NOTICE OF MOTION – Application to dismiss – abuse of process - Order 12 Rule 40(1)(c) – National Court Rules – dismissal also sought premised on time-bar issue – s.16(1)(a) – Frauds and Limitations Act – whether claim premised on a single act or whether cause of action accruing – consideration – alternative claim – whether claim should be dismissed for want of proper representative capacities and instructions to act – Order 5 Rule 13(1) – National Court Rules - second alternative claim – whether the ILG does not exist pursuant s.11 – Land Group Incorporation (Amendment) Act 2009 – whether ILG ceased to exist after the 5th year - consideration - ruling

Cases Cited:

Mamun Investment Ltd and 1 Or v. Onda Koim and Ors (2015) SC1409
Soakofa Trading and 1 Or v Bank South Pacific Ltd (2021) SC2068
Habolo Building & Maintenance Ltd v Hela Provincial Government (2016) SC1549
Public Curator v Konze Kara as Administrator of the estate of Kibikang Kara (2014) SC1420
Wasu Api and Ors v. Green Timber (PNG) Ltd (2021) N8898

Counsel:

F Kua, for the Plaintiffs
Nil representative for the First Defendant
G Aiawa, for the Second Defendant

RULING

24th November, 2023

1.	ANIS J:  I heard the second defendant’s notice of motion filed 4 September 2023 (NoM) on 21 November 2023.  The application was contested.  I reserved my ruling thereafter to a date to be advised.

2.	This is my ruling.

BACKGROUND

3.	I refer to the plaintiffs’ writ of summons and statemen of claim filed 17 November 2022 (SoC).  The plaintiffs claim to be customary landowners of Ulamona Village of Bialla in West New Britain Province.  The are suing for themselves and on behalf of an entity called the Ibana Incorporated Land Ground (Ibana ILG).  They claim damages based on various causes of actions against the defendants, namely, negligence, nuisance, trespass and breach ss 41 and 44 of the Constitution.  

4.	The second defendant is a proprietor of a registered state lease in the Bialla area.  It is described as Agricultural State Lease, Portion 624, Milinch of Ulawun, Fourmil Talasea, West New Britain Province (State Lease or Navo Oil Palm Plantation).  There is a river that flows along the boundaries of the State Lease and customary land.  It is called Ibana River.  The plaintiffs’ various causes of actions are premised on this.  They allege that the second defendant, since 1984 and up to the present time, has been secretly or without any rights removing or extracting gravels or aggregates from the riverbeds or sides of the Ibana River.  As such, they claim that the actions of the second defendant had caused damages to their land and environment.  They claim, amongst others, that the actions of the second defendant has also affected the river system which in turn has affected their lives or caused destruction or damages to their land.

5.	Premised on their various claims, they seek the following relief:

(a)	Compensation of K35,000,000.00.

(b)	General damages.

(c)	Special damages.

(d)	Interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No. 52.

(e)	Cost of this proceeding.

MOTION

6.	The second defendant seeks the following main relief in its NoM:

1.	Entire proceedings be dismissed for abuse of court process pursuant to Order 12 Rules 40(1)(c) of the National Court Rules and for being statute barred pursuant to sections 16(1)(a) of the Frauds and Limitation Act.

2.	Alternatively, pursuant to Order 5, Rules 13(1) of the National Court Rules, the entire proceedings be dismissed for Plaintiffs’ lack of representative capacity to sue in this class action.

3.	Alternatively, the entire proceeding be dismissed for lack of compliance with section 11, Land Group Incorporation (Amendment) Act 2009 in registration of Ibana Incorporated Land Group.

7.	The second defendant relies on the affidavit of Mr Aiawa filed 4 September 2023 in support of the NoM.  The plaintiffs, on the other hand, rely on the affidavit of James Kuba in opposing the NoM.

ISSUES

8.	The main issue in my view is, whether the claims are an abuse of process because they are time barred under s.16(1)(a) of the Frauds and Limitations Act 1988 (FLA).  Subject to the Court’s ruling, I may proceed to consider the alternative issues, namely, whether the plaintiffs lack representative capacities to sue as a class action, and secondly, whether the Ibana ILG has ceased to exist.  And consequently, if the answers to the alternative issues are in the affirmative, whether they effectively mean that the proceeding should be dismissed.  

TIME BAR

9.	I note the submissions of the parties under this sub-heading.

10.	The premise of the second defendant’s claim is that the alleged causes of actions as pleaded at para 11 of the SoC, arose in 1984.  As such, it claims that by virtue of s.16(1)(a) of the FLA, the action is time barred because the claim had occurred about 38 years ago from the date of filing the SoC.  The plaintiffs, in their defence, argue that although the claim had commenced in 1984 as pleaded at para 11, it has continued to accrue over the years and the actions complained off are presently still occurring.  As such, they submit that the claims are not time barred.

11.	The reference to the year 1984, I observe, was not pleaded to say that it was a one-off incident that had occurred in the said year as regarded and submitted by the second defendant.  I reach this observations premised on the pleadings in the SoC.  Para 8 for example begins as follows, The extraction of stone and aggregates from the Ibana River from the past and current were done without the Plaintiffs’ knowledge….”.  And Para 11 also states in part,  The Defendants have caused destructions to the river banks and surrounding vegetation since 1984..

12.	These are just some of the examples that are asserted in the SoC by the plaintiffs to support their submissions that their claims are not premised on a single event or incident, but rather, are premised on alleged actions or inactions of the second defendant that have continued to accrue to date since 1984.  

13.	What does the case law say on this?  In Mamun Investment Ltd and 1 Or v. Onda Koim and Ors (2015) SC1409, the Supreme Court stated at paras 15 and 16:

15.  In the House of Lords case of Cartledge and Ors v. E. Jopling & Sons Ltd [1963] 2 WLR 210, Lord Pearce said at p223:

"Past cases have been decided on the basis that the time runs from the accrual of the cause of action, whether known or unknown,.....

16. His Lordship referred to numerous cases in which it was held that a cause of action accrued and time began to run irrespective of the plaintiff's lack of knowledge. This continues to be the position as is illustrated by the following passage of Lord Hoffman in the House of Lords decision of Law Society v. Sephton & Co [2006] UKHL 22; [2006] 2 AC 543, 2WLR 1091:

"The normal period of limitation prescribed by section 2 of the Limitation Act 1984 for an action founded on tort is six years from the date on which the cause of action accrued. Since a cause of action may accrue without the knowledge of the injured party (Cartledge v Jopling [1963] AC 758) the six year period may expire before he is able to bring proceedings."

14.	The Supreme Court, in conclusion and in interpreting s.16(1) of the FLA, accepted the proposition that the cause of action whether it be in a simple contract, tort, or tort of fraud, shall commence from the date or time when the contract was breached or the tort was committed, and not from the time of discovery of the alleged breach of contract, tort or fraud by a claimant.

15.	Also, and in regard to recurrent acts or actions in a breach of contract or a tort under s.16(1)(a) of the FLA, the Supreme Court in Soakofa Trading and 1 Or v Bank South Pacific Ltd (2021) SC2068 stated at para 19:

19.  In the case of a tort actionable per se, the cause of action accrues when the wrongful act is committed: Konze Kara v. Public Curator of Papua New Guinea & Anor (2010) N4055. An example of a tort actionable per se is defamation: see Loani Henao v. David Coyle (1999) N1918.

16.	The Supreme Court in Habolo Building & Maintenance Ltd v Hela Provincial Government (2016) SC1549 acknowledged Public Curator v Konze Kara as Administrator of the estate of Kibikang Kara (2014) SC1420, where it stated:

The Court held that the cause of action continued to accrue in the period from 1992 to 2006, and that the writ was filed within six years of the last date of accrual of the cause of action. In taking that approach the Supreme Court endorsed the reasoning of the primary judge, that in the case of a tort that is actionable only on proof of damage, such as negligence, the cause of action accrues when the damage occurs. Such torts are continuous and a fresh cause of action arises daily as the tort continues (Konze Kara v Public Curator (2010) N4055). A long line of persuasive British authority in support of that approach was cited by the Supreme Court, including Crumbie v Wallsend Local Board [1891] UKLawRpKQB 17; [1891] 1 QB 503, Huyton v Liverpool Corporation [1926] 1 KB 146, Konskier v B Goodman Ltd [1928] 1 KB 421, Clarkson v Modern Foundries [1957] 1 WLR 1210, Cartledge v E Jopling & Sons Ltd [1963] AC 758, Forster v Outred [1982] 1 WLR 86 and UBAF Ltd v European American Banking Corporation [1984] QB 713.

17.	With this clarity, I must say that I do not find this claim to be time barred.  I therefore refuse to grant relief 1 of the second defendant’s NoM.

ALTERNATIVE RELIEF

18.	I now turn to the 2 alternative relief sought in the NoM.  I prefer to address them together, and as such, I make the following observations.  First, I note that the plaintiffs’ description of whom they represent appears confusing.  But upon considering the pleadings and submissions from the plaintiffs’ counsel, including the evidence of Mr Kuba, it seems clear in my view that the plaintiffs are also acting on behalf of the Ibana ILG.  That is also how they have described themselves as, in this proceeding.  Ibana ILG is said to consist of members of the 3 clans of Ulawun village, namely, Ablimosi Kasia, Nagoa and Abunava clans.

19.	Having clarified this, Mr Kua for the plaintiffs concedes that presently, the Ibana ILG is not registered, that is, by operation of s.11 of the Land Group Incorporation (Amendment) Act 2009.  Section 11 states:

11.   NEW SECTION 36.

The Principal Act is amended by adding after Section 35 the following new section:

"36. SAVINGS AND TRANSITIONAL ARRANGEMENTS.

(1)  On and from the coming into effect of this Act, all current and existing incorporated land groups incorporated prior to the coming into force of this Act shall on the coming into force of this Act be allowed to continue for a transitional period of 5 years only and that such incorporated land groups shall automatically cease to exist at the fifth anniversary from the date of effect of this Act.

(2)  Within the 5 years transitional period referred to in Subsection (1), all existing incorporated land groups shall apply for re-incorporation in full compliance of all the requirements of this Act.".

20.	So, given the non-existence status of the Ibana ILG, the 5 plaintiffs herein, in my view, cannot act for this entity which does not exist.  I find that to be the case.

21.	This leaves the 5 plaintiffs as the remaining parties.  I note that they have described themselves as primarily acting for themselves.  This position is confirmed at para 1 of the SoC which reads in part, “The plaintiffs bring this action on behalf of themselves and as customary landowners….”.  The plaintiffs, as landowners, may commence such an action in their own rights.  In Wasu Api and Ors v. Green Timber (PNG) Ltd (2021) N8898, the I stated at para 14, which I adopt herein, as follows:

14…….In my view, any customary landowner who is part of a clan or a tribe and who is a citizen may ask such questions of activities whether commercial or otherwise that is or may be occurring upon his or her land or habitant.  Why should he or she first obtain the consent of his or her entire clan to ask the question?  If he or she decides to include the name of the clan and sue for or on behalf of the clan or some other group of the clan, then obviously he or she must first of all obtain their consent before he or she puts down his or her name as their representative in an originating process.  And the reason is obvious, that one cannot act or claim to act for another person or group in a Court proceeding without their consent or authority.

22.	As such and in conclusion, I will refuse to grant alternative relief 2.  In regard to relief 3, I will partially grant it without dismissing the entire proceeding.  I will make an order for the removal of the Ibana ILG to the proceeding as well as in the pleadings.

23.	Consequently, this is a case where I would exercise my powers and also issue leave or direct the plaintiffs to file an amended Statement of Claim to reflect upon the orders of the Court.  And the same will apply to the defendants in terms of their defence.

SUMMARY

24.	In summary, I refuse to grant the main relief sought in the NoM.

25.	The only other orders I make will be in regard to the removal of the Ibana ILG and the clan names, from the proceeding.  I will also direct the plaintiffs to file an amended Statement of Claim to reflect the orders that I will make.  I will also make an order for the defendants to file an amended Defence in response.

COST

26.	An order for cost is discretionary.  I will order each parties to pay their own costs of this application.

ORDERS OF THE COURT

27.	I make the following orders:

1.	The Second Defendant’s Notice of Motion filed 4 September 2023 is refused in general.

2.	The Inbana Incorporated Land Group Inc. shall be removed as a party to the proceeding together with the names of the clans.

3.	The Plaintiff shall file and serve an Amended Statement of Claim that shall reflect upon the Court’s orders above herein and serve a sealed copy on the Defendants through their lawyers or otherwise, within 21 days from today.

4.	The Defendants shall be at liberty to file their Amended Defence within 14 days after the 21 days as computed under term 3 of the Court Order.

5.	Parties shall pay their own costs of the application.

6.	Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the National Court which shall take place forthwith.
________________________________________________________________
Felix Kua Lawyers:	Lawyers for the Plaintiffs
In-house Counsel:		Lawyer for the Second Defendant