N2827

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

OS NO. 544 OF 2000

BETWEEN:

KUMAI MUMUN on his behalf and on behalf of SASAGAS CLAN
OF NOBNOB VILLAGE, MADANG PROVINCE
First Plaintiffs

AND:

DAGHAN CO. LTD
Second Plaintiff

AND:

RD TUNA CANNERS LIMITED
First Respondent

AND:

MADANG PROVINCIAL GOVERNMENT
Second Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Madang: Manuhu, AJ
2005: February 14 & 21.

RULING

Interlocutory relief – dismissal of proceeding for no cause of action – appropriate remedy - removal of party for lack of representative capacity – removal of parties with ‘same interest’ in representative action – prejudice to the parties. 

Cases cited:
Simon Mali v The State (2002) SC690.
Morobe Bakery Pty Ltd v. Minister for Lands and Physical Planning [1990] PNGLR 96.
Modilon Automotive Pty Ltd v Kevin Southcomb [1997] PNGLR 158.
Timothy Lim Kok Chuan v Simon Goh Say Ben & Anor (2004) N2538.

Counsel:
Ms. R. Siriman, for the Plaintiffs.
Mr. L. Vava Jr., for the Third Respondent.

21st February 2005.

MANUHU, AJ.: I have already handed down and circulated my ruling, which was in a draft format, to the parties. I also advised the parties then that I will complete and publish my reasons which copies would be made available to them. I do that now. 

This is the Third Respondent’s application by way of notice of motion seeking orders, firstly, pursuant to Order 12 Rule 40 of the National Court Rules, that the proceeding be dismissed for disclosing no cause of action and or secondly that the First Plaintiffs be removed for lack of representative capacity.

No Cause of action

The Plaintiffs’ originating summons claims, among other things:

1.	A declaration that the First Plaintiff and others have a legally binding Agreement with the Respondents to allow the Second Plaintiff to participate in spin-off business with the First Respondent Company at its factory at Madang, Madang Province, most specifically Portion 1004, Milinch of Kranget.

2.	A declaration that in accordance with the agreement between the First Plaintiffs and other clans and the Respondents the Second Respondent was awarded a valid contract to operate inter alia a canteen at the said Respondent premises along the Madang-Bogia Highway and transport service for employees of the said Respondent.

3.	A declaration that the purported termination of the agreement between the Plaintiff and other clans and the Respondents in respect of the RD Tuna Cannery along the Madang-Bogia Highway on 26th of October, 2000 is void and of no effect and amounts to an attempt conspiracy against the Plaintiffs.

4.	An order, both interim and permanent, restraining the Respondents from evicting and stopping the Second Plaintiff from carrying out its business on the premises of the First Respondent.

5.	An order, both interim and permanent, restraining the members of the Hibuta No. 2 Clan, Ditipa Kunta Clan and Badalon Clans from interfering with the contract and business of the Plaintiffs with the Respondents, particularly the First Respondents.

The first part of the Third Respondent’s arguments targets paragraphs 4 and 5 of the originating summons. The Third Respondent argues firstly that paragraph 4 will not serve any purpose as the Plaintiffs, shortly after the filing of the proceedings, have already been evicted. The Third Respondent argues secondly that paragraph 5 is misconceived and baseless because the clans therein are not parties to the proceedings.

The arguments are prima facie valid but I note firstly that the orders sought under paragraphs 4 and 5 of the originating summons are also tied to the substantive relief sought under paragraphs 1, 2, and 3. They are probably not relevant in the meantime if the Plaintiffs have already been evicted. However, if the Plaintiffs are successful in obtaining the declarations under paragraphs 1, 2 and 3, "permanent" injunctive relief may be necessary to facilitate the declarations.

I note secondly that on 4th January 2001, the parties consented to certain consent orders. Paragraphs 4 and 5 of the order are in the following terms: 

"4. That this proceeding be transferred to Madang National Court for substantive hearing.

"5. All the landowners including those employed by Land Owner Company stay out of the premises of the First Respondent at Portion 1004, Milinch Krangket, Siar, Madang, except those in employment with the First Respondent." 

The order, particularly paragraph 5, is against all the land owners, which probably already includes the clans named in paragraph 5 of the originating summons. It is a contradiction therefore for the Third Respondent to suggest that a further interim order cannot be made against the very same clans. 

In addition, the parties have agreed and the court has ordered that the matter proceed to substantive hearing. Four years have lapsed since then. Somebody must account for this long delay. In the meantime, interlocutory applications should be minimized. When the parties have agreed that the matter must proceed to substantive hearing, it is not responsible for the Third Respondent to be filing this application, so far, seemingly over peripheral issues. 

For the foregoing reasons, I see nothing wrong with paragraphs 4 and 5 of the originating summons. They are there to facilitate the substantive reliefs sought under paragraphs 1, 2 and 3 of the originating summons. 

The second part of the Third Respondent’s application is more substantive. It is submitted that the Plaintiffs can only claim damages and not declarations of rights and injunctive reliefs. I can understand the Third Respondents argument but what is an appropriate remedy is dependent on the varying circumstances of each case. 
This case appears to me to be more complex than a typical contractual arrangement where damages are easily quantifiable. RD Tuna Canners Limited is a multi-million Kina company that is probably here to stay for a long time. The land owners will not leave either. They have always been here, long before the establishment of RD Tuna Canners Limited. Issues relating to interest and ownership of customary land, from experience, are complex and unpredictable. Who should benefit from the spin-off of the industry is another issue that is important. In the circumstances, it may be extremely difficult to quantify damages. See Modilon Automotive Pty Ltd v Kevin Southcomb [1997] PNGLR 158 and Timothy Lim Kok Chuan v Simon Goh Say Ben & Anor (2004) N2538 on appropriateness of specific performance as a remedy for breach of contract. 

In any case, there is nothing wrong in law to seek specific performance on the basis of a contract which termination is very much an issue in this proceeding. Thus, on the face of it, the Plaintiffs have a choice. They may sue for damages but they have decided to assert their contractual rights. They should be permitted to do so. 

For all the foregoing reasons, I reject the Third Respondents request to dismiss the proceeding on the basis of the summons disclosing no cause of action. 

Lack of representative capacity

The Third Respondent further seeks to have the First Plaintiffs removed for lack of representative capacity. 

The Third Respondent relies on the case of Simon Mali v The State (2002) SC 690, where the Supreme Court said:

"We accept the State’s submission that in all actions or proceedings of a representative nature, all the intended plaintiffs must be named and duly identified in the originating process, be it Writ of Summons, Originating Summons or Statement of Claim endorsed on a writ. In this respect, pursuant to the Rules (supra), each and every intending plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them. There are good reasons for this, one being where costs of the litigation are concerned, if awarded against the plaintiffs."

In this case, Plaintiff Mumun is suing on his behalf and on behalf of Sasagas Clan. None of the members of the Sasagas Clan has been named and duly identified in the originating process. In addition, a clan is not a legal entity and cannot be deemed as a party in a legal proceeding. The principle argument is that Plaintiff Mumun cannot represent Sasagas Clan. 

I note however that Plaintiff Mumun is also suing "on his behalf". This means that he cannot be removed for instituting an action on his own behalf. In other words, his representative capacity may be removed but the proceeding must still proceed with him as the only plaintiff. 

In any event, in relation to his representative capacity, rules and procedures are established to ensure that parties are fair to each other. A plaintiff should not be prejudiced from lodging his complaint. Similarly, a defendant should not be prejudiced from presenting his defence. With that in mind, it should be noted that in the case of Simon Mali v. The State, the State was sued for the acts and omissions of its servants or agents in conducting an illegal police raid in the respective villages of Simon Mali and others, causing what were alleged to be substantial damage to personal properties. In such a case, it is necessary, for obvious reasons, that the parties are properly identified and named in the originating summons, and; each of their claims are properly pleaded. 

The case before me is slightly different. The Plaintiffs are not seeking damages, which usually demands better particularisation. The Plaintiffs are seeking certain declarations pursuant to certain agreement between the parties. The remedy the Plaintiffs seek is firstly a collective remedy. It is the same for all of them. Secondly, the remedy they seek does not demand the type of details as required in a claim for damages. The remedy the Plaintiffs seek is as specifically stated in the originating summons, which are: that the First Plaintiff and others have a legally binding Agreement with the Respondents; that the Second Respondent was awarded a valid contract to operate inter alia a canteen at the Second Respondent’s premises along the Madang-Bogia Highway and transport service for employees of the said Respondent; and, that the purported termination of the agreement between the Plaintiff and other clans and the Respondents in respect of the RD Tuna Cannery along the Madang-Bogia Highway on 26th of October, 2000 is void and of no effect and amounts to an attempt conspiracy against the Plaintiffs. 

In the circumstances, I am willing to permit Plaintiff Mumun to pursue the matter "on his behalf" and "on behalf of Sasagas Clan". This result is consistent with Order 5 Rule 13(1) of the National Court Rules, which provides:

"Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all except one or more of them." (my emphasis)

An example of this is the case of Morobe Bakery Pty Ltd v. Minister for Lands and Physical Planning [1990] PNGLR 96. The action was brought, pursuant to Order 5 Rule 13, for and on behalf of the residents, owners and occupiers of properties situated on Airways Avenue, Hillside Avenue, Butibam Road, Markham Road, Huon Road, Ariel Avenue and Hermes Road, Lae, Morobe Province. None of the other plaintiffs were specifically named. The case was an application in the nature of a mandatory injunction and an application for protection of property concerning the closure of certain roads which "interferes with the rights and egress and access by residents of the roads in question or roads whose access depends on the roads in question."

In this case, for the sake of comparison, the Plaintiff, representing himself and Sasagas Clan, is seeking certain declarations and enforcement of certain rights conferred by contractual agreement. The Plaintiff has the "same interest" as every other members of Sasagas Clan. The other members of the clan, as mandated by the National Court Rules, do not have to be named; and, I reiterate, their exclusion does not prejudice the Third Respondents’ defence in any manner.

For all these reasons, the Third Respondent’s submission that the First Plaintiff be removed for lack of representative capacity is without merit. 

Lastly, I draw the parties’ attention to the consent orders referred to and emphasize that this matter should proceed to trial without any further delay. In the meantime, the application is dismissed with costs against the Third Respondent.

Orders accordingly.
______________________________________________________________________

Lawyer for the Plaintiffs		:	Public Interest Environmental Lawyers
Lawyer for the Third Defendant	:	Paraka Lawyers