N2001

PAPUA NEW GUINEA

[National Court of Justice]

WS 801 of 1998

BETWEEN

ELIAKIM LAKI on behalf of himself and
167 other former Block Holders of Kavugara Oil Palm Block,
West New Britain Province
Plaintiffs

AND

MAURICE ALALUKU, Secretary
Department of Lands
First Defendant

AND

UTULA SAMANA, Secretary
Department of Agriculture and Livestock
Second Defendant

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani	:	Sevua, J
16th August & 10th November, 2000

Practice & Procedure – Default Judgment – Defence filed out of time – No leave granted – Order 12 Rule 25 (1) National Court Rules.

Pleadings – Insufficient and general allegations – Insufficient particulars against each defendant – 168 plaintiffs but no allegation by each plaintiff – No cause of action – Order 8 Rule 29 (1) National Court Rules.

Case cited and applied:
Luke Tai v. Australia & New Zealand Banking Group (PNG) Limited, Unreported, N.1979, 17th July, 2000 (Kapi, DCJ).

P. Parkop for Plaintiffs
D. Lambu for Defendants

SEVUA J:	There were two applications that were heard on 16th August, this year.

The first application was by the plaintiffs, and it was for default judgment on the basis that the defendants did not file a defence within the 60 days period stipulated in the Claims By and Against the State Act 1996. The second application by the defendants, was for the proceedings to be dismissed on the grounds that the plaintiffs failed to give notice pursuant to s.5 of the Claims By and Against the State Act, and secondly, the statement of claim did not disclose a cause of action against each defendant.

I will deal with the plaintiffs’ application first. The plaintiffs filed their writ of summons on 26th August, 1998. No affidavit of service was filed until 12th April this year after the application for default judgment was filed on 2nd March, 2000. An amended writ or schedule to the writ of summons was filed on 24th September, 1999, but again there was no affidavit of service until 12th April, 2000. But then, the service of the amended writ was effected on 23rd September, 1999, the day before it was actually filed in Court on 24th September. The affidavit of Seri Mitige sworn on 12th April, 2000, deposes to that fact in paragraph 2, but the plaintiffs have not clarified that anomaly, so it seems that the amended writ was served before it was filed. The date of filing a defence would therefore run from 24th September, 1999.

The defendants filed a defence on 8th April, 2000, some seven months and fourteen days outside the 60 days limit stipulated by s.9 (a) (i) of the Claims By and Against the State Act. No leave was sought and therefore the defendants filed their defence without leave. The defendants have therefore not filed a defence in accordance with the Rules thus they are in default.

I concur with the Deputy Chief Justice’s reasons in Luke Tai v. Australia & New Zealand Banking Group (PNG) Ltd, Unreported, N1979, 17th July, 2000, and apply the principle in this case. The defendants have defaulted and there is therefore no defence. On that basis alone, default judgment should be entered for the plaintiffs. However, there are other considerations that prevent me from exercising that discretion, and I will discuss those when canvassing the defendants’ application.

The first ground of objection raised by the defendants has no merit, in my view. The Claims By and Against the State Act 1996 was passed in 1996 and certified on 8th January, 1997. The plaintiffs’ lawyer gave notice to the State through the Solicitor General on 1st June, 1998. The letter is annexed to the affidavit of Mr Parkop sworn on 3rd June, 2000. The last paragraph of page 3 of that letter is quite clear. The plaintiff’s lawyer said: "Pursuant to the Claims By and Against the State Act, we accordingly give notice of our clients intention to commence legal proceedings." I am satisfied that notice was given in accordance with s.5 (1) (b) of the Claims By and Against the State Act, therefore this ground is dismissed. I need only add that, the evidence of early notice given by Michael Kanua annexed to the affidavit of Mr Pakop is hearsay, therefore inadmissible, and I reject that evidence.

The second ground of objection was also the defendants’ application to dismiss the proceedings, which is more substantive, and it is this issue that concerns the Court.

Firstly, there are 168 plaintiffs in this action. The writ is said to be filed by the first plaintiff, Eliakim Laki, on his own behalf and also on behalf of the 167 others who are named in the amended schedule to the writ. If this is a class action, there is no authority for Eliakim Laki to file proceedings as a class representative of the 167 others. The Court notes that, despite raising this issue on 16th August, and despite Mr Parkop’s assurance that he would file that authority, the plaintiffs have failed to file an authority that Eliakim Laki represents them in this action. It stands to reason therefore that he should not represent the others without a proper authority.

Secondly, if Eliakim Laki properly represents the other 167 block holders, their pleadings are quite inadequate. If the Court accepts that there are 168 different plaintiffs, their pleadings ought to reflect what each of them is claiming against each of the three defendants.

What the plaintiffs’ lawyers have done was, they have filed a writ with a statement of claim, which pleaded general allegations against the defendants. There are no details or particulars of each plaintiff’s claim against each of the three defendants. It has been said many times in many cases that the purpose of pleadings is to give the defendant and the Court a precise nature of the plaintiff’s claim. In this case, the plaintiffs’ statement of claim does not do that.

For instance, in paragraph 11 of the statement of claim, the plaintiffs alleged that they were forced to abandon their land in 1992, but what exact date did this occur? For all we know, this claim could be statute barred by s.16 of the Frauds and Limitations Act, 1988. Which of the three defendants forcefully terminated the leases? And which plaintiff suffered loss and what is his loss? There must be allegations or facts put to each defendant in the statement of claim so each can have the opportunity to respond. It is unfair, in my view, for a defendant to be left guessing as to what a plaintiff’s allegations against him entails. The plaintiff has a duty to plead his claim fully so that a defendant is given the opportunity to either admit or deny each allegation and to state facts to counter the allegations.

It is my view that the plaintiffs’ pleadings are too general in nature that they do not give each of the defendants the opportunity to adequately and properly respond to each allegation. I am of the view that the plaintiffs, or each plaintiff for that matter, must be able to identify which defendant did what specific act constituting the tort or breach of contract he is alleging. It is quite unfair and improper for this type of pleadings to be permitted by the Court to proceed this far.

Another example is, the plaintiffs have not particularized details of their leases they alleged were issued to them. Particulars of who was issued with what lease and the description of the lease, eg, portion number, or section and allotment number, or volume and folio number of each lease have not been specified. In my view, these facts are important so that each defendant can be given the opportunity to say whether or not it is true that each of the 168 plaintiffs were issued with a lease.

The plaintiffs’ counsel argued that the defendants’ application should be dismissed as they had the opportunity to request further and better particulars but they didn’t. Whilst I agree with that argument because Order 8 Rule 36 provides for an order for particulars, it is nevertheless the duty of the plaintiffs by Rule 29 of Order 8 to give the necessary particulars of their claims to each defendant. That is a mandatory requirement which, I consider the plaintiffs have failed to comply with. First and foremost, each plaintiff in this case has the duty to plead with sufficient particularity, the claims he makes against each defendant. They have not done this therefore, in my view, they cannot ask for default judgment when their pleadings are quite inadequate, too general and in breach of Order 8 Rule 29 of the National Court Rules.

I am inclined to accept the defendants’ counsel’s submission that the pleadings as they are, do not disclose a cause of action against each of the defendants. I am also inclined to accept that the proceedings should be struck out so that fresh proceedings be instituted, and hopefully the pleadings would be done properly.

The power to order default judgment is discretionary thus the Court can grant or refuse an application for default judgment. In the present case, the Court is not inclined to grant the plaintiffs’ application for the reasons that have been adverted to. Instead, the Court is of the view that, each plaintiff should properly and clearly plead his cause of action against each of the defendants so that each defendant and the Court are aware of the precise nature of each plaintiff’s claim against each defendant. The Court has a duty to protect its process so that it is not abused by litigants. The statement of claim in this writ is an abuse of the process, which warrants an order pursuant to Order 12 Rule 40 (1).

For these reasons, the plaintiffs’ application for default judgment is refused. The defendants’ application for the proceedings to be struck out is granted. The plaintiffs shall pay the defendants’ costs.

____________________________________________________________________
Lawyer for Plaintiffs			:	Powes Parkop Lawyers
Lawyer for Defendants		:	Solicitor General