Unreported National Court Decisions
N1915
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO. 1276 OF 1996
BETWEEN: GABRIEL APIO IRAFAWE
PLAINTIFF
AND: YAUWE RIYONG
DEFENDANT
Goroka
Kirriwom J
19 July 1999
22 September 1999
Cases Cited
PNG Forest Products v The State [1992]PNGLR 86 
Lowa v Akipe [1992] PNGLR 399
Counsel
Mr. K. Wogaro for the Plaintiff
Mr A. Manase for the Defendant
RULING
22 September 1999
KIRRIWOM J: On the day fixed for the hearing of this matter the Defendant moved the Court for the case to be dismissed pursuant to O. 12 r. 40 of the National Court Rules on the grounds that:
1.       Statement of Claim does not disclose a reasonable or legally identifiable cause of action;
2.       Action was frivolous and vexatious;
3.       Action was an abuse of Court process.
Mr Manase submitted that if the application was successful that would be the end of this action and it was imperative therefore that it be heard first. Mr Wogaro for the Plaintiff did not oppose and so I proceeded to hear the Defendant on his preliminary application. 
In Part A of the Statement of Claim the Plaintiff seeks:
(i)       K46,661.00 as damages for breach of verbal promise for the purchase of a 6 Ton Hino Highway Truck.
(ii)      K12,300 as loss for the use of the Plaintiff’s Toyota Stout while the Defendant had the use of the vehicle for 164 days at K75 per day hire.
In the alternative in Part B of the Statement of Claim the Plaintiff seeks:
(i)       K2,650 in damages for unpaid hire rates for the period 42 days the Defendant had the Plaintiff’s vehicle Toyota Stout at K75 per day hire. A sum of K500 paid to the Plaintiff was deducted from the total sum of K3,150.
The claim in part B appears to be a duplication of the claim for K12,300 in Part A of the Statement of Claim.
There is a common denominator to these claims. They are election related but with a proviso that the Defendant was successful in his election bid for the Chuave Open Electorate in the Chimbu Province. The Plaintiff now sues the Defendant to live up to the ‘promise’ he made to him which he had not fulfilled since winning the election.
It must be appreciated at the outset that the Plaintiff and the Defendant are related by custom and they come from the same village of Kibereu, Chuave District, Chimbu Province. The Plaintiff claims that during or leading up to the 1992 elections the Plaintiff entered into an oral agreement with the Defendant to lend him (the Defendant) the use of his (the Plaintiff’s) toyota stout vehicle for his election campaign so that if he won the election he (the Defendant) would buy the Plaintiff a Hino 6 tonne truck valued at K46,661.00. This was the condition of the Defendant’s use of the Plaintiff’s toyota stout vehicle during his campaign rally.
At the same time it is claimed that the Defendant was also required to pay K75 per day for the use of the said vehicle and this is the essence of his claims for K12,300 or in the alternative K2,650 for hire rates. This claim is also pursued notwithstanding the perceived agreement to buy a heavy duty truck.
I have to decide on the facts as presented by the Plaintiff in the Statement of Claim as to whether he has a reasonable cause of action against the Defendant. The Defendant founds his application on the strength of O. 12 r. 40 and O. 8 r. 27 of the National Court Rules. These Rules clearly set out what the law is in this jurisdiction as far as civil suits are concerned because strictly speaking these rules govern the practice and procedures of civil proceedings before the Courts. Both these Rules had been considered and discussed in various cases including PNG Forest Products v The State [1992] PNGLR 399.
For purposes of clarity both O. 12 r. 40 and O. 8 r. 27 of the National Court Rules are set out below:
Order 12 rule 40       Frivolity, etc
“(1)    Where in any proceedings 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 process of the Court, 
the Court may order that the proceedings 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)". 
Order 8 rule 27         Embarrassment, etc
“(1)    Where a pleading:
(a)      discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or 
(b)      has a tendency to cause prejudice, embarrassment or delay in the proceedings; or
(c)      is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.
(2)      The Court may receive evidence on the hearing of an application for an order under Sub-rule (1)".
What this Court had said in the cases alluded to have been correctly quoted by Counsel for the Defendant in his written submission which, with respect, I adopt into the body of my judgement because I cannot express what has been stated in them in any better way than as they appear in their original text. In the case of PNG Forest Products v The State (supra) Justice Sheehan held, at p. 87:
“1.      A party has a right to have his case heard, as guaranteed by the Constitution and the laws of this country. Such a right cannot be lightly set aside. Hence the National Court Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. For the same reason and in the interest of justice, the rule include prohibitions against abuse of the court process.
2.       Quite apart from the powers given to the court by the National Court Rules Order 12 Rule 40 to strike out or stay any proceedings which:
(a)      do not disclose a reasonable case of action; or
(b)      are frivolous or vexatious; or
(c)      are an abuse of the court process,
The court also has an inherent jurisdiction to protect itself from abuse of its process. If the Court is satisfied that the conditions of Order 12 Rule 40 are or have been established, it may strike out that offering action. Hence, it can in appropriate cases prevent a party from presenting its case in court or from defending one brought against it. But the refusal to try a party’s claim or the striking out of its defence is not lightly done, and there has been a long hiostory of case law determining what is a “reasonable” cause of action or defence and what is “frivolous or vexatious”. See Republic of Peru v Peruvian Guano Company (1887) 36 Ch D 489 per Chitty J, Hubbuck and Sons Ltd v Wilkinson, Heywood & Clerk Ltd (1899) 1 QB 86 per Lord Lindly MR;
3.       An action should only be struck out in cases where “the cause of action is obviously and almost incontestably bad”.
4.       There is a distinction between seeking to have an action decided on a preliminary point of law and moving to have it struck out for want of reasonable cause of action. See Hubbuck and Sons Ltd v Wilkinson Heywood and Clerk Ltd (1899) 1 QB 86 per Lord Lindly MR; Lonrho pic v Fayed (1991) 3 ALLER 303 per Lord Bridge”.
The Supreme Court discussion on this issue of reasonable cause of action is in Lowa v Akipe (supra) where Kapi DCJ at p. 428 said:
“The appellants’ complaint on appeal is confined to the decision by the trial judge for not striking out the Statement of Claim on the basis that it did not disclose a reasonable cause of action. The powers of the court are set out in Order 8, Rule 27 and Order 12, Rule 40. 
Order 8 Rule 27 is as follows:
1.       Where a pleading:
(a)      discloses no reasonable cause of action . . .
the court may at any stage of the proceedings, on terms or otherwise, order that the whole or part of the pleading be struck out”.
Order 12, Rule 40 is as follows:
1.       Where in any proceedings 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..
the court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings:.
The phrase “cause of action” has been used in many pieces of legislation and has been the subject of judicial consideration in other jurisdictions. In Read v Brown (1888) 22 QBD 128, the Court of Appeal considered the meaning of the phrase “cause of action”. Lord Esher MR, with whom Fry LJ and Lopes LJ agreed, at p. 131 said:
“It has been defined in Cooke v Gill to be this: every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. It has been suggested today in argument that this definition to too broad, but I cannot assent to this, and I think that the definition is right.”
The phrase “cause of action” has two components. First, there must be a right which is given by a law, such as entitlement to reasonable damages for breach of human rights under s. 58 of the Constitution. This is what is referred to as the “form of action”. Secondly, the pleadings must disclose all the necessary facts which give rise to the form of action.
The law is quite clear. The question however is, on the given factual circumstances borne out on the pleadings, in particular the Statement of Claim, does the Plaintiff have a reasonable cause of action?
I am inclined to agree with counsel for the Defendant/Applicant that the facts do not disclose a reasonable cause of action. The entire pleading is defective for what want of form and certainty. It is ambiguous because on one hand the Plaintiff contends that he allowed the Defendant the use of his toyota stout for his campaign purposes on the condition that he bought him a 6 tonne highway truck if he won the election, on the other hand he appears to be charging him at a daily rate of K75 for the hire of his vehicle. This is where the uncertainty creeps in and casts much doubt on the legitimacy, hence, substance of this whole suit. There is a saying, ‘you can’t have your cake and eat it at the same time.’ This is clearly a one-sided contract in favour of the Plaintiff if the law were to recognize it. This would be clearly amounting to fraud and extortion if the Defendant accepted liability based on, if anything, tribal affiliation.
Parties who intend to create a contractual relationship out of otherwise a family duty or obligation to provide moral and physical, even financial support to a relative who contests an election must enter into a written contract if it is their intention to sue on that contract or agreement. This is not to say that such contracts are fool-proof and not subject to this Court striking down as being illegal, void or unenforceable for a multitude of reasons.
This so-called agreement, if it were to go on trial, is bound to be declared void on the grounds of public policy, illegality and on the very threshold question of the parties intention to create a contractual relationship. What is the offer and what is the acceptance? It is against public policy for a person of public standing, such as a member of Parliament, to enter into an agreement with a constituent to engage in anything or pay for a project, out of his pocket which is in turn drawn from the public purse. As against the member concerned objects of such contract is injurious to good government and therefore unenforceable. See Chitty on Contracts - General Principles para 1151. It is against public policy for the Plaintiff to demand payment from the Defendant for voting and supporting the Defendant into an elective office because the Plaintiff was legally obliged and it was his public duty to vote in the elections. See Chitty on Contracts, General Principles - Para 194 at p. 136.
The Statement of Claim, lacking particularity as it is, does not even facilitate orderly and rationale pleadings to identify the real issues and is thus in dire need of wholesale polishing. I therefore agree with counsel for the applicant that this action is vexatious and frivolous and tantamount to an abuse of process of the Court. The application for dismissal of the substantive action on foot is upheld and the proceedings are hereby dismissed with costs against the plaintiff.
Lawyer for the Plaintiff: Narakobi & Co.
Lawyer for the Defendant: Pato Lawyers