DC891

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

DCC13/2009

BETWEEN

JOPAM LTD
Complainant

AND

NINIPE TAPTEL T/A
TAPTEL KAIBAR
Defendant

MADANG: J KAUMI, M
2009:13th JULY.

PRACTICE & PROCEDURE – Application to strike out proceedings for Want of form Alternatively application to strike out proceedings for being frivolous and vexatious - Whether failure to plead with particulars amounts to failure to disclose reasonable cause of action – Failure to disclose reasonable cause of action distinct and separate from failure to plead with particulars and or evidence – Separate consequences follow – Abuse of the Court’s process to apply to dismiss proceedings for failure to disclose reasonable cause of action when the basis for the application is based on lack of particulars and or evidence

Cases Cited:

PNG Forest Products v The State [1992] PNGLR 85 
Gabriel Apio Irafawe v. Yauwe Riyong (1996) N1915 
Eliakim Laki and 167 Others v. Maurice Alaluku and Others (10/11/00) N2001
Jack Livinai Patterson v National Capital District Commission (05/10/01) N2145 
Kiee Toap v. The State & Ors (26/11/04) N2731 
Pius Nui v. Senior Sergeant Mas Tauda & Ors (21/12/04) N2765 
Lerro v Stagg (2006) N3050

References:

District Courts Act 1963 Ch. No.40
Summary Ejectment Act 1952 Ch. No 202
National Court Rules

Counsel:

Mr. N Tombe, for the Defendant/Applicants 
Mr. A Akuani, for the Complainant/Respondent 

13th July 2009

Kaumi, M: The application before me by the defendant is that the Summons and Complaint should be struck out for want of form and being frivolous & vexatious pursuant to section 22 of the District Court Act 1983.

The complainant opposes the application. For the first part of the application, the complainant argues that there is nothing wrong in the form of the Complaint and Summons. As for the second part of the application, he argues that the subject matter is the complaint and is the cause of action and that it can not be said as impliedly by the defendant that the complainant’s action is obviously and incontestably bad and that there is no doubt that the complainants complaint and summons do disclose a reasonable cause of action, the proceedings are nit frivolous, vexatious and an abuse of t he process of the court as said by the defendant.

Relevant Issues 

3. The above are the arguments advanced by counsel and therefore the application; raise the following issues for determination by the Court:

1. Whether the complainants Summons to a person upon Compliant be struck out for want of form pursuant to Section 22 of the District Court Act;

2. Whether the Summons to a person upon a Complaint be struck out for being frivolous and vexatious.

3. Whether in the alternative the entire proceedings be dismissed pursuant to section 22 of the District Court Act 1983

Relevant Background

4. This matter DCC No 13 of 2009 was filed on the 11th March 2009. This Complaint was filed along with Summons to a Person upon Complaint, Statement of Claim, Supporting Affidavit and a Notice of Motion. The Court on the 09th June 2009 directed the Complainant to amend the Complaint and Summons to a Person upon Complaint. In adherence to the Court’s direction the Complainant on the 12th June 2009 filed the amended Complaint and Summons. The Statement of Claim initially filed on the11th March 2009 remains the same as the Court made no directions for its amendments as it accepted it in its form.

5. The Defendant by way of a Notice of Motion filed on the 30th June2009 applied to the Court for the following orders;

1. Pursuant to section 22 of the District Courts Act 1983, the Summons to a Person Upon Complaint be struck out for Want of Form.

2. Alternately the Summons to A Person Upon Complaint be struck out for being frivolous and vexatious pursuant to section 22 of the District Courts Act 1983.

3. Further and in the alternative the entire proceedings be dismissed pursuant to section 22 of the District Courts Act 1983

4. Complainant to pay costs of proceedings.

5 .Any further orders the Court deems fit

Relevant Law

DISTRICT COURT ACT 1983

6. The District Court is a court of Summary Jurisdiction and with limited jurisdiction. Section 22 of the District Court Act is in the following terms:

22. GENERAL ANCILLARY JURISDICTION.

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it–

(a) grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same effect to every ground of defence or counterclaim, whether equitable or legal,

as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.

7. The District Court must receive and register a Complaint and the cause of action must be within its jurisdiction (Section 21 of The District Court Act) and having satisfied itself it can grant relief, redress or remedy or any other combinations whether absolute or conditional, whether legal or equitable and in a manner as the National Court would have granted

For general principle I adopt Kandakasi. J in the case of Lerro v Stagg (supra) where he stated that "I considered O.12, r.40 in the case of Jack Livinai Patterson v. National Capital District Commission.[1] There, I noted that there are numerous cases on this rule, starting with the decision of the judgment of Sheehan J. (as he then was) in PNG Forest Products v. The State.[2] Since that judgment and my decision, there have been a number of other National Court judgments mainly by Cannings J., in the cases of Kiee Toap v. The State & Ors[3] and Pius Nui v. Senior Sergeant Mas Tauda & Ors.[4] Prior to these recent judgments, there are the judgments of Kirriwom J., and Sevua J., respectively in Gabriel Apio Irafawe v. Yauwe Riyong[5] and Eliakim Laki and 167 Others v. Maurice Alaluku and Others.[6]

8. This long list of cases clearly set out the relevant guiding principles when an application is made under O.12 r.40 and or O.8 r.27 (1) of the Rules. As far as I am able to tell, the principles emerging from these lines of cases are as follows: 

1. 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." [7] A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.[8] 

2. At the same time however, the law such as the Rules under consideration provides for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.

3. The object of these rules are therefore "to stop cases which ought not to be launched — cases which are obviously <frivolous or vexatious or obviously unsustainable."[9] In other words "the object of the rule was to get rid of <frivolous actions."[10]

4. A claim may be frivolous if it can be characterized as so obviously untenable that it cannot possibly succeed or that the claim or defence is bound to fail if it proceeds to trial.

5. A claim or defence may be <vexatious if the case amounts to a sham or one which cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or proving the claim.[11]

6. With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that there are two (2) parts to the phrase "cause of action". First, it entails a right given by law such as an entitlement to reasonable damages for breach of human rights under s.58 of the Constitution, commonly referred to as the "form of action". Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action.[12]

7. The phrase "cause of action" could thus be defined in terms of a legal right or form of action known to law with:

"every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved."[13]

8. A statement of claim or a defence (as the case may be) must therefore clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and relevant and necessary facts (not the evidence) giving rise to the form of action.[14] It follows therefore that, where a statement of claim or a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, [15] and instead leaves it to guess work, it should be struck out.[16] 

9. These rules provide a summary judgment procedure or remedy which is available to a plaintiff or a defendant, and one which vests and calls for an exercise of a discretion by the Court.

10. The discretion must be exercised sparingly and only in a case where the statement of claim or the defence (as the case might be) is "obviously and almost incontestably bad." In other words this discretion can be exercised only in cases that "are plain and obvious so that the master or Judge can say at once that the statement of claim [or defence] as it stands, is insufficient, even if proved, to entitle the plaintiff [defendant] to what he asks"[17] for". 

9. Applying these principles to the case before me, the first question for me to ask and resolve is; Should the complainant summons be struck out for want of form?

10. The Complainants claim in the summons is against the defendant for continuing to occupy the complainant’s property without paying monthly rental of K2625 with current outstanding rentals owing at K26,250.00 and after notices (verbal and written) were given to the defendant in December 2007 and September2008 after determination of the verbal lease agreement of November 2004.

11. Further that the complainant therefore claims possession forthwith of its property (Unit 2, Section 17, Allotment5, Madang) pursuant to section 3&4 of the Summary Ejectment Act Ch. No.202.

12. The Complainant’s Statement of Claim that was filed initially on the 11th March 2009 with the Summons, Complaint, Supporting Affidavits and Notice of Motion was accepted by the Court as proper and therefore no orders were made in respect of it. The only order made was for the amendment of the Complaint and Summons. The Statement of Claim remained part of the Complaint.

13. The Complaint and Summons filed on the 12th June 2009 contain the relief sought by the Complainant i.e. "And the Complainant claims possession forthwith of its property (unit2, Section 17, Allotment 5,Madang) pursuant to sections 3&4 of the Summary Ejectment Act Ch. No.202

14. The Complainant’s Supporting Affidavits filed on 11th March 2009 remained part of the Complaint that was filed on the same date and remain so today as no Orders were made by the Court in respect of them on the 09th June 2009.

15. As for the question of whether, the plaintiffs claim is frivolous and vexatious the test for frivolousness is as already noted, is the claim has to be so obviously untenable that it cannot possibly succeed or that the claim or defence is bound to fail if it proceeds to trial. The test for a vexatious > claim is as also noted, distinct from <frivolousness in that it provides that if the claim or defence to a claim amounts to a sham or one which cannot succeed and is one that amounts to harassment of the opposite party who is unnecessarily put to the trouble and expenses of defending or proving the claim. In both instances, either of the conclusions could clearly be arrived at only in the clearest of cases. A clear case of a claim being frivolous> and or being vexatious > would be for example a case where the issue raised has already been decided by a court of competent jurisdiction or that the action pleaded lacks essential elements such as consideration or an offer and acceptance in the case of a contract, or where a condition precedent has not been met such as the requirement for notice of intention to make a claim against the State[25] in the case of a claim against the state or the Motor Vehicle Insurance Trust.[26]

16. Here the defendant submits firstly that the complainants complaint is frivolous and vexatious and because as the Court understands it from his counsel’s affidavit, it did not contain a statement of Claim containing pleadings giving rise to the course of action and secondly because it did not state the relief he sought, and thirdly, because the complainant had not filed and served on the defendant the affidavits which he intended to rely on to prosecute his case.

17. What the defendants are trying to do in this case is to get this Court to consider their evidence to the exclusion of the plaintiffs and strike out the complainant’s claim without properly making a case out for the matter being frivolous and vexatious Clearly therefore, both of the defendants’ contentions are without any merit. Instead, they are misconceived and an abuse of the Court’s process both on the merits 

18. The complainant’s amended complaint and summons were filed on 12th June 2009 stating the course of action and relief sought. Secondly, the Supporting Affidavits that were originally filed on the11th March 2009 remained part of the amended complaint and summons that were filed on the 12th June 2009.

19. In short, I find that the defendants’ application seeking to strike out the complainant’s complaint based on his claim that the complaint was bad for want of form and being frivolous and vexatious is without merit and is an abuse of the process of the Court. Accordingly, I dismiss the defendants’ application and make no orders as to costs.

_________________

AKUANI LAWYERS FOR THE RESPONDENT/COMPLAINANT
KUNAI LAWYERS FOR THE APPLICANT/DEFENDANT