N3044

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 79 of 2004

BETWEEN:

SIMON AWARIA LUMBURINDI & 20 ORS
Plaintiff

AND:

SAM INGUBA, COMMISSIONER FOR POLICE
First Defendant

AND:

ELECTORAL COMMISSION
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Davani, J.
2006: 10, 30 March

PRACTICE AND PROCEDURE – negligence claim – election related violence – particulars of negligence – too remote, no nexus – O.12 r.40 O.8 r.27 of National Court Rules

NEGLIGENCE – defendants not at scene – State not vicariously liable – claim too remote to allegations of negligence – s.1(1) (2) (3) (4) of Wrongs (Miscellaneous Provisions) Act

Cases cited:
PNG Forest Products Pty Ltd and Anor v The State and Genia [1992] PNGLR 85 
Gabriel Apio Irafawe v Yauwe Riyong (1996) N1915
Eliakim Laki and 167 others v Maurice Alaluku and others (2002) N2001
Kembo Tirima v Angau Memorial Hospital Board (2005) N2779

Counsel:
J. Kolo, for the plaintiffs
M. Miningi, for the first and third defendants
R. Williams, for the second defendant

30 March, 2006

RULING

1. DAVANI J: Before me are motions filed by Paraka Lawyers on 18 November, 2005 for the first and third defendants and Nongorr & Associates for the second defendant, filed on 29 September, 2005. Both motions seek orders that the proceedings be dismissed for being frivolous and vexatious and for not disclosing a cause of action. 

2. The plaintiffs oppose the application.

3. I heard the applications and reserved my ruling.

Facts

4. The plaintiffs are from Kapola village, Kagua District in the Southern Highlands Province. It is not disputed that on 29 July 2002, voters were gathered at the Mabuanda Primary School grounds to exercise their right to vote at the Local Level Government elections for the Kagua-Erave electorate. The plaintiff, Simon Awaria Lumburindi, was a registered candidate and was contesting the Kagua-Erave open seat. After some time and before commencement of voting, the voters became violent and started fighting which led to a raid on the plaintiffs village where houses, domestic animals, personal properties and other items of value were destroyed.

Application

5. Paraka Lawyers' amended cross-motion seeks orders that the proceedings be dismissed either pursuant to O.12 r.40 and O.8 r.27 of the National Court Rules ('NCR') or O.8 r.29 of the NCR. 

O.12 r.40 reads;

"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) of this Rule."

O. 8 r.27 reads;

"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;

(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) of this Rule."

O. 8 r.29 reads;

"29. General

(1)	A party pleading shall give the necessary particulars of any claim, defence or other matter pleaded by him.

(2)	Rules 30 to 34 inclusive of this Order do not affect the generality of sub-rule (1) of this Rule."

6. Both the applicants' lawyers submit that the proceedings should be struck out because there were no police officers or polling officers present at the polling area to then establish a nexus between the fight that occurred and the absence of the policemen and polling officials. Mr Miningi for the first and third defendants particularly, submits that the policemen would have been charged for failing to perform their duties considering the tribal fight caused major loss and damage to all those involved. But the policemen were not at the polling area and additionally, were not charged.

7. The issue then is, should the policemen and polling officials be held responsible for the plaintiffs losses when they were not even there? Mr. Miningi referred the court to s.1 (4) of the Wrongs (Miscellaneous Provisions) Act ('Wrongs Act'), which states;

"1. General liability of the State in Tort

(4) where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed by virtue of instructions lawfully given by the Government."

8. He then referred the court to s.177 (4) of the Constitution and s.2 of the Organic Law on the Relief of Members of Disciplined Forces from the Responsibility for the consequences of carrying out a Lawful Order ('Organic Law').These provisions read;

"197. Functions of the Police Forces

(1)	The primary functions of the Police Force, are in accordance with the Constitutional laws and Acts of the Parliament -

(a)	to preserve peace and good order in the Country; and

(b)	to maintain and, as necessary, enforce the law in an impartial and objective manner.…"

(2)	"Member of a disciplined force not liable for the consequences of carrying out lawful order, etc.

A member of a disciplined force is not liable for the consequences of carrying out –

(a)	a lawful order; or

(b)	an order which he honestly and on reasonable grounds believed to be a lawful order (the onus of establishing his belief and the reasonable grounds on which it was based, being on him)."

9. He then concluded that for the provisions mentioned in the Organic Law, Constitution and Wrongs Act to apply, a Tort should first be committed by a Policeman (or electoral official) in compliance with a lawful order and that lawful order should have been given by the Government through the appropriate authorities. He further submits that for the State to be vicariously liable, the plaintiffs must satisfactorily establish all the elements of negligence.

10. Other than the above, s.1(1) (2) and (3) of the Wrongs Act are also very specific as to when the State can or will be held liable. They read;

"1. General liability of the State in Tort

(1)	Subject to this division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject - 

(a)	in respect of torts committed by its servants and agents; and 
(b)	in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and
(c)	in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.

(2)	Proceedings do not lie against the State by virtue of Subsection (1) (a) in respect of an act or omission of a servant or agent of the State unless the act or omission would, apart from this Division, have given rise to a cause of action in tort against the servant or agent or his estate.

(3)	Where the State is bound by a statutory duty that is binding also on persons other than the State and its officers, then, subject to this Division, the State is, in respect of a failure to comply with that duty, subject to all liabilities in tort (if any) to which it would be subject if it were a private person of full age and capacity."

11. And it is obvious that these provisions do not cover the situation portrayed by the plaintiffs. But before I discuss whether elements of negligence are properly pleaded in the Statement of Claim and whether that is necessary, I shall consider firstly the principles in relation to such applications. I set out below several cases where these principles were held. These are;

-	If it is plain and obvious that the Statement of Claim, even if proved, will not entitle the plaintiff to what he is asking for, it is appropriate to strike out the proceedings on the ground that no reasonable cause of action is disclosed. But the procedure should be confined to cases where the cause of action is obviously and almost incontestably bad. The plaintiff should not be driven from the judgment seat unless the case is unarguable. (see PNG Forest Products Pty Ltd and Anor v The State and Genia [1992] PNGLR 85, National Court, Sheehan .J).

-	If the Statement of Claim 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, it should be struck out. (see Gabriel Apio Irafawe v Yauwe Riyong (1996) N1915, National Court, Kirriwom .J).

-	If the Statement of Claim just leaves a defendant guessing as to what the plaintiffs allegations are, it should be struck out. (see Eliakim Laki and 167 others v Maurice Alaluku and others (2002) N2001, National Court, Sevua .J).

And the court must carefully review the Statement of Claim to determine this. The Statement of Claim must firstly show there to be a cause of action, in this case, in negligence, and that it is not "…obviously and almost incontestably bad…". (see PNG Forest Products Pty Ltd and Anor (supra)). 

12. The cause of action is determined by;

-	the legal ingredients or the elements of the claim; and 

-	the facts that support each element of the claim. The plaintiff must outline the claim and demonstrate that there is a clear legal basis for the action. If the plaintiffs Statement of Claim does that, there is a reasonable cause of action. If it does not, then it does not disclose a reasonable cause of action. 

13. In the present case, it appears the plaintiff is bringing an action based on the common law of negligence. To disclose a cause of action in negligence, the Statement of Claim must set out the elements of the Tort of negligence and in a clear and logical fashion alleging the facts in support of each element.

14. There are three (3) basic elements to the tort of negligence. They are;

i)	That the defendants owed a duty of care to the plaintiff/s.
ii)	That the defendant/s acted unreasonably or negligently and in breach of its duty to the plaintiff and 
iii)	That as a result of that breach of duty, the plaintiff suffered injury for which the defendant must compensate him.

15. I set out below the relevant paragraphs in the plaintiffs amended Statement of Claim that will assist me in determining whether there is a cause of action. These are;

9.	"On the 29th July, 2002 the fourth defendant set Mabuanda Primary School ground as one of the venues for voting to be conducted by the plaintiff and members of his tribe and a neighboring tribe, in particular the Kapola and Koyami tribes of Kagua District, Southern Highlands Province.

10.	The plaintiff, Mr. Simon Awaria Lumbirindi was then a registered candidate and was contesting the Kagua-Erave Open electorate in the 2002 National and Local Level Government Elections.

11.	On the date aforementioned, all the eligible and registered voters assembled to cast their votes but the ballot papers did not arrive on time which was 8.00am as scheduled.

12.	When the ballot papers eventually arrived late at or around 4.00pm in the afternoon, the conduct of the elections by the third defendant and his polling officials did not proceed as scheduled.

13.	As a direct result, the protracted delay in commencing polling infuriated and provoked voters of rival candidates who became violent and started fighting and raided the plaintiff's village thereby causing extensive damages to properties and livestock at Kapola village.

14.	During the raid, the plaintiff and members of his clan lost houses, food gardens, domestic animals, cash crops, personal properties and other valuables, particulars of which will be provided before or at the time of trial.

15.	Prior to the elections at Kapola village, the third defendant through the fourth and fifth defendants did not properly arrange for the ballot papers to be dispatched on or before the time scheduled for the elections.

16.	Further, before or at the material time of the violence and raid at Kapola village, the sixth defendant, through the office of the fifth, fourth and third defendants did not ensure that security was beefed up to suppress the violence and raid.

17.	That the second defendant through the first defendant did not provide adequate manpower at Kapola village nor called reinforcements to contain the situation and protect lives and properties pursuant to their Constitutional duties.

18.	The six defendant is vicariously liable for the damages and losses suffered by the plaintiffs through the actions or inaction of the first, second, third, fourth and fifth defendants.

19.	The defendants were negligent in the performance of their official duties as agents, members and officials of the Police Force and the Electoral Commission, and ultimately the sixth defendant as respondent superior in that they;

PARTICULARS OF NEGLIGENCE

(a)	Failed in transporting all ballot papers at or around 8.00am in the morning as scheduled and conducting the elections on time; and

(b)	Failed in providing adequate security during and immediately after the polling to ensure an orderly and violence-free elections;

(c)	Failed in deploying members of the Police Force to the polling area to suppress the violence and raid by the rival candidates.

20.	Because of negligence of the defendants pleaded hereinabove, the plaintiff and the people whom he represents have suffered damages and losses, particulars of which will be provided before or at trial.

21.	In addition to or in the alternative, the conduct of the defendants as set out in the preceding paragraphs led to the breach of the Constitutional Rights of the plaintiff and the people whom he represents in this action.

PARTICULARS OF CONSTITUTIONAL RIGHTS BREACH

(a)	Section 32	Right to Freedom	
(b)	Section 36	Freedom from Inhuman Treatment	
(c)	Section 49	Right to Privacy	
(d)	Section 53	Protection from unjust deprivation of property	

22.	The plaintiff and the people whom he represents have given their Notice of Intention to sue the State pursuant to section 5 of the Claims By and Against the State Act 1996 as per their letter dated 5th January 2003."

16. It is apparent that par (15) to (19) form the basis of the plaintiffs claim in negligence. But are these pleadings sufficient to establish an arguable case and that they are not "obviously and incontestably bad". I find that the plaintiffs must establish that the defendants owed them a duty of care, that they breached that duty and that as a result, the plaintiff suffered. Do the defendants owe the plaintiff a duty of care in ensuring that the ballot papers should have been transported on time, that adequate security should have been provided and that members of the Police Force should have been at the polling area? For all we know, the fight could have started for other reasons. Even if the police had been there, could the plaintiffs have avoided a fight? Which then takes me back to Mr Miningi's submissions, that a Tort should firstly be committed by a policeman or policemen or electoral official/s in compliance with a lawful order which would then make the State vicariously liable for their actions. This is where s.1(4) of the Wrongs Act is especially relevant. The only time the State can assume liability is if its officer "…commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed by virtue of instructions lawfully given by the Government" (my emphasis). In this case, there is no nexus or connection between the government officials actions and the fight because the policemen and polling officials were not at the scene of the fight. 

17. Again, Cannings .J in Kembo Tirima v Angau Memorial Hospital Board (2005) N2779 dated 4 February 2005, said this about elements of negligence –

-	that the persons injuries were not too remotely connected to the defendants conduct; and 

-	that the plaintiff has not contributed to her or her own injuries e.g. by being contributorily negligent or voluntarily assuming the risk of injury.

18. The plaintiff must show that the damages suffered are connected to the defendants conduct. Again, what is the defendants wrongful conduct? By not being at the polling station? The plaintiffs have not shown by evidence that the policemen should have been there. Or even if they had been there, could a fight have been avoided? We do not know. But who were the polling officials and policemen who were supposed to have been there? They have not been named. In fact, Mr Miningi had on several occasions requested the plaintiffs lawyer to provide names of policemen or electoral officials in his Request for Further and Better Particulars, but to no avail. 

19. The court is unable to determine how the sixth defendant especially, can be vicariously liable if there were no policemen or polling officials at the scene of the polling. This can be contrasted with a situation where policemen were at the scene of a raid but are not named on the summons for one reason or another. In that situation, if the policemen were under lawful orders to be there, then the State can be held to be vicariously liable. But this is not such a case. I find that the plaintiffs injuries are too remotely connected to their allegations of negligence.

20. I find the defendants have shown there to be no cause of action (in the plaintiffs case) and that the action is frivolous and vexatious because the pleadings are obviously and incontestably bad. Even if I were to order that the matter proceed to trial, the plaintiffs will not be able to establish negligence by the policemen and polling officials.

Orders 

1.	The action is dismissed in its entirety;

2.	The plaintiffs shall pay the defendants costs of the proceedings, to be taxed if not agreed.

___________________________

Yapao Lawyers: Lawyers for the plaintiff
Paul Paraka Lawyers: Lawyers for first and third defendants
Nongorr & Associates: Lawyers for second defendant