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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 818 OF 2006
TENDER WAK for and on behalf of himself and other members
of the Mara family whose names are set out in Schedule
"A" attached hereto
Plaintiffs
AND
JOHN WIA, PAULUS OKIL, JET KUNTIN, KOIM PEP,
ATEP PEP, TEP KEROWA & PAI TETEP
First Defendants
AND
SAMUEL TAMAI, WAMA KENDENG, PONENG WAMA,
DAVID WAMA, DOWA WAK, MOTI WARA & DAVID WAK
Second Defendants
Mount Hagen: Makail AJ
2008: 15 February
: 11 March.
PRACTICE AND PROCEDURE - application to dismiss action - want of jurisdiction - customary landownership dispute - National Land’s Commission determination - award of compensation - party aggrieved by National Lands Commission award - should have filed application for Judicial Review - order for recovery of compensation against the other parties - lack of pleadings - no cause of action - claim dismissed - customary landownership dispute referred for determination under provisions of Land Disputes Settlement Act - Sections 2, 3 and 26 - jurisdiction of Local Land Court to determinate customary landownership dispute.
PRACTICE AND PROCEDURE - declaratory orders sought as primary relief - declaration of ownership of land in dispute - damages sought as alternative or consequential relief – application for stay of proceeding pending determination of customary landownership dispute – National Court Rules – Order 12 rule 40 (1) - oral application for leave to amend pleadings at hearing of application to dismiss - National Court Rules - Order 8 rule 50 - amendment at any time - prudent practice to place draft amended pleadings before court – no draft amended pleadings - application for leave to amend refused - orders.
Cases cited:
PNG Forest Products Limited & Another -v- Jack Genia as Minister for Forest & The State [1992] PNGLR 8.
Victor Golpak -v- Patrick Alongerea & Others [1993] PNGLR 491.
Ronny Wabia -v- BP Exploration Operating Co Limited & 2 Others [1998] PNGLR 8
National Superannuation Fund Board -v- Mt. Hagen Local Level Government: WS NO. 1312 of 2007 (Unnumbered and Unreported Judgment of
4 March 2008)
Legislations Cited:
Land Disputes Settlement Act Ch 45.
National Court Rules
Counsels:
Mr K Sino, for the Plaintiffs
Mr R Otto, for the Defendants
INTERLOCUTORY RULING
11 March, 2008
1. MAKAIL AJ: Introduction: This is an application by the Defendants by Notice of Motion filed on 7 June 2007 seeking an Order to dismiss the entire court proceeding as being frivolous, vexatious and as being an abuse of process of the Court on the basis that this Court lacks jurisdiction to determine a customary land dispute between the parties pursuant to Order 12, rule 40 (1)(b)&(c) of the National Court Rules.
2. The Defendants also seek a consequential Order that the dispute be referred to the Local Land Court for the issue of customary land ownership to be dealt with and also for costs of defending this proceeding.
3. The Plaintiffs opposed the application and I heard submissions of all the parties and served my ruling to today. This is my ruling.
EVIDENCE
4. In support of the Application, the Defendants rely on the following Affidavits:
1. Affidavit in Support of Poning Makap sworn on 5 June 2007 and filed on 7 June 2007;
2. Affidavit in Response of Samuel Tamai sworn on 2 October 2007 and filed on 8 October 2007; and
3. Supplementary Affidavit of Samuel Tamai sworn on 4 December 2007 and filed on 5 December 2007.
5. The Plaintiffs have responded to the Defendants’ Affidavits by relying on the following Affidavits:
1. Affidavit of Moses Tei Uah sworn and filed on 9 November 2007;
2. Affidavit of Luluai Kuntilni sworn and filed on 9 November 2007;
3. Affidavit of Wai Rumints sworn and filed on 9 November 2007;
4. Affidavit of Petro Paiya Mark sworn and filed on 9 November 2007;
5. Affidavit of Rurundi Rumints sworn and filed on 9 November 2007;
6. Affidavit of Jack Koim sworn and filed on 9 November 2007;
7. Affidavit of Kulda Mark sworn and filed on 9 November 2007;
8. Affidavit of Aaron Aret Pep sworn and filed on 9 November 2007;
9. Affidavit of Philip Ketelga sworn and filed on 9 November 2007;
10. Affidavit of Korowa Uah sworn and filed on 9 November 2007;
11. Affidavit of Dopeke Manga sworn and filed on 9 November 2007;
12. Affidavit of Philip Manga sworn and filed on 9 November 2007;
13. Affidavit of James Pai Kit sworn and filed on 9 November 2007; and
14. Affidavit of Namba Noke sworn and filed on 9 November 2007.
BRIEF BACKGROUND
6. To begin my ruling, it is relevant to set out in full the reliefs sought by the Plaintiffs in this court proceeding because they go to determine the very issues raised by the Defendants in their application to dismiss the entire court proceeding.
7. On 16 June 2006, the Plaintiffs filed a Writ of Summons seeking the following Orders from this Court:
1. A Declaration that the Plaintiffs are the original customary land owners of Portion 803 being part of Mount Hagen township.
2. Alternatively, a Declaration that the Plaintiffs are the original customary land owners having interests in the land described as Portion 803 being part of Mount Hagen township.
3. An Order that the Defendants pay the sum of K765,000.00 to the Plaintiffs with 90% of any interests accruing thereto.
4. Alternatively, the Court asses an amount from the compensation payment for Portion 803 in the proportion to the Plaintiffs’ interests.
5 General and Special Damages to be assessed.
6. Interests at 8% pursuant to the Judicial Proceedings (Interests on Debts & Damages) act Ch 52.
7. Costs of the proceeding.
ISSUES
The issues are:
THE LAW
8. The Court’s jurisdiction to dismiss court proceeding as being frivolous and vexatious and an abuse of process is found under Order 12 rule 40(1)(b) & (c) of the National Court Rules.
Order 12 rule 40 of the National Court Rules states 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; or
(b) the proceedings are frivolous and vexatious; or
(c) the proceedings are an abuse of 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)".
PARTIES’ SUBMISSIONS
9. Mr Otto of counsel for the Defendants submitted that it is clear from the evidence of the Plaintiffs and also the Defendants that there is a dispute over a customary land identified as Portion 803 of which the Mount Hagen Technical School is now located.
10. He contended that the land was compulsorily acquired in the colonial days for the establishment and development of Hagen Township but no form of compensation was paid to the customary land owners.
11. The Defendants claimed that they are the true customary land owners of Portion 803. Portion 803 was one of the land area apart from Portions 75, 76, 77, and 78 which the Defendants claimed they owned.
12. For example, in paragraphs 2, 3, 4 and 5 of the Affidavit in Response of Samuel Tamai sworn on 2 October 2007 and filed on 8 October 2007, Samuel Tamai deposed that the grandfather of the principal Plaintiff, Tender Wak by the name of Mara only lived on Portion 74. Mara did not live on Portions 75, 76, 77, 78 and 803. Mara and his family were a small family and could not possibly own the entire land.
13. Mr Tamai also deposed that the Defendants including himself are members of the Muri, Koken and Paken family and belong to the group known as Andakelkang of the Jika Oprum tribe of Mt Hagen, Western Highlands Province. They are the customary landowners of Portions 75, 76, 77, 78 and 803. These Portions of land form the whole of Kerebug land which is where the Mt Hagen Technical School is now located. In the old days, their fore fathers had occupied these lands for dwelling purposes and also for cultivation and farming for food.
14. Mr Tamai further deposed in paragraphs 6 and 7 of his Affidavit that as Mara only occupied Portion 74, it was entirely up to the principal Plaintiff as the grandson of Mara to pursue any claim for compensation of the Portion 74 against the State. Even then, Mr Tamai deposed that Portion 74 was acquired by the State but no form of compensation was paid for its acquisition. In the colonial days, a Kiap called Mr Benny Rutz used policemen and guns to chase the customary landowners away and took possession of it. Later Kiap Rutz declared it a government land.
15. On 6 April 2001, the National Lands Commission awarded a total sum of K850,000.00 to the Defendants as payment for the subject disputed land, Portion 803. The Defendants received the K850,000.00 and distributed amongst themselves. There are no more funds left.
16. For these reasons, Mr Otto of counsel for the Defendants submitted that as there is a dispute over the ownership of Portion 803, the dispute should be determined under the provisions of the Land Disputes Settlement Act. This Court is a wrong forum for the parties to bring their dispute for determination. This is because the National Court does not have jurisdiction to determine a customary land ownership dispute.
17. On the other hand, Mr Sino of counsel for the Plaintiffs submitted that the Plaintiffs are the true customary land owners of Portion 803, including Portions 74, 75, 76, 77 and 78. He submitted that there is no dispute between the Plaintiffs and the Defendants as to the ownership of these portions of land. This is because the Defendants are fully aware that the Plaintiffs are the true customary owners of these lands. These portions of land were previously customary land but were acquired by the State and are now State land.
18. For example, in paragraphs 1, 2, 3 and 4 of the Affidavit in Support of Tender Wak sworn and filed on 7 May 2007, he deposed that he is the principal of the Mara family. He claimed that the Mara family owns Portions 74, 75, 76, 77, 78 including 803.
19. He further deposed that in the old days, the Mara family occupied these lands and his father received compensation for these lands, houses, food gardens and coffee trees when the State acquired these lands. He has not deposed to the amount of compensation his father received from the State.
20. Furthermore, he deposed that the First Defendants are members of the Muri family of Opromb clan and Jika Rolgbu tribe. By customary law, their great grand father called Muri originally occupied a small part of Portions 74, 75, 76, 77, 78 including 803.
21. As for the Second Defendants, Mr Wek deposed that they are members of the Andakelkang family of Opromb clan and Jika Rolgbu tribe. By customary law, their great grand father called Muri originally occupied a small part of Portions 74, 75, 76, 77, 78 including 803.
22. Mr Sino of counsel for the Plaintiffs further submitted that as the Defendants are not the true customary landowners of these portions of land, they had fraudulently misrepresented their claim for compensation to the National Lands Commission and fraudulently received payment of K850,00.00 for these portions of land, namely Portions 75, 76, 77, 78 including 803 from the State. The National Lands Commission should have paid the said money to the Plaintiffs.
23. To support this contention, Mr Wak deposed in paragraphs 5, 6 and 7 of his Affidavit that sometimes in 2000, the Defendants secretly and discretely with the assistance of one Mr Philip Maipson lodged a claim for compensation with the National Lands Commission for Portion 803. The Plaintiffs somehow became aware of the claim for compensation and found out that the submissions for compensation included the Mara family as one of the landowners of Portion 803.
24. Mr Wak further deposed that when the Plaintiffs brought this matter to the Defendants’ attention, the Defendants told them that first, the Defendants acknowledged that the Plaintiffs are the landowners of Portion 803, secondly the Plaintiffs should not interfere with the progress of the claim and lastly, when the claim is approved and paid out, the Defendants agreed that they would take into account the Plaintiffs in the distribution of the compensation.
25. Mr Wak further deposed that in or around April 2006, the State paid K850,000.00 to the Defendants. However, the Defendants failed to distribute the compensation according to their earlier agreement. The Plaintiffs were completely omitted from the list of recipients of the compensation.
26. The other Affidavits of witnesses for the Plaintiffs go to show that the portion of land where the Mt Hagen Technical School is located being Portion 803 is owned by the Mara family whilst the land where the Mt Hagen Secondary School is located is owned by the Defendants. Some of these witnesses gave evidence of the geneological background of the family of Mara and how the Mara family came to own Portion 803. These witnesses for the Plaintiffs also deposed that some of them receive some of the compensation money between K1,500.00 and K15,000.00. They claimed that these amounts were insufficient and informed the Defendants of their intention to take the matter to Court, hence this court proceeding.
27. In the alternative, if the Court finds that the National Court has no jurisdiction to determine the issue of ownership of Portion 803, then Mr Sino of counsel for the Plaintiffs submitted that pursuant to Order 12 rule 40(1) of the National Court Rules the Court should stay the proceeding and refer the dispute of ownership for determination under the provisions of the Land Disputes Settlement Act Ch 45.
28. Further, Mr Sino of counsel for the Plaintiffs submitted that leave be granted to the Plaintiffs to amend their Statement of Claim to plead a cause of action based on fraud and damages as the relief. This is to avoid any prejudice to the Plaintiffs rights that they seek to enforce by way of this court proceeding.
THE LAW
Section 2 of the Land Disputes Settlement Act defines dispute as "a dispute to which, in accordance with Section 3, this Act applies." Section 3 states as follows:
"3 Application
( 1) Subject to Section (2) and to section 4, this Act applies to disputes as to interests in customary land, or as to the position of boundaries of any customary land.
(2) Nothing in this Act applies to a dispute-
(a) as to whether land is or is not customary land; or
(b) to which Part IV of the Land Group Incorporation Act 1974 applies."
Section 2 of the Land Disputes Settlement Act defines interest to "include any interest in land of whatsoever nature that is recognized by the custom of the people of the area in which the land is located"
Section 3 of the Land Disputes Settlement Act is very clear. The Act applies to disputes as to interests in customary land, or as to the position of boundaries of any customary land.
RULING
Land Dispute
29. The first issue I am to decide is whether there is a customary land ownership dispute between the Plaintiffs and Defendants.
30. I have perused in detail the various Affidavits filed in this court proceeding. The most notable ones are those of Mr Wak sworn and filed on 5 May 2007 and that of Mr Tamai sworn on 2 October 2007 and filed on 8 October 2007 and I must say that one thing is very clear from these Affidavits; and that is, there is a dispute over the ownership of Portion 803. The Plaintiffs claimed that they own the land and the Defendants also claim that they own the land.
31. However, what is not in dispute is that the land known as Portion 803 was previously customary land. It is also not disputed that Portion 803 was acquired by the State in the colonial days. When it was acquired by the State, no form of compensation was made to the customary landowners. Now that the State has paid compensation to one group, namely the Defendants, the other group, being the Plaintiffs have raised an objection to this compensation payment to the Defendants.
32. Thus, the question is who are the true customary landowners of Portion 803? That is a question that needs to be determined later. For now, as I have said above, I am to determine the question of whether there is a dispute between the Plaintiffs and the Defendants over the ownership of Portion 803. This is the crucial issue here.
33. I agree with the submissions of Mr Otto of counsel for the Defendants that there is a dispute between the parties over the ownership of Portion 803 land.
34. I have no doubt in my mind and I so find that there is a dispute between the Plaintiffs and the Defendants over the ownership of Portion 803. All the witnesses for the Plaintiffs and also the Defendants in their Affidavits have given evidence against each other to either prove or disprove ownership of Portion 803. I also find that this dispute has arisen because the State has paid compensation to one group of landowners, namely the Defendants pursuant to a National Lands Commission’s determination of 6 April 2001. As the Plaintiffs have missed out on the compensation, they are now recovering the money from the Defendants by way of this court proceeding.
35. I further find that the question of compensation is peripheral or depended on the question of ownership. That is, the question of ownership must be determined first before the question of who is entitled to receive compensation is decided. I will return to discuss this point later on in my ruling when I consider the Plaintiffs’ application for leave to amend the pleadings in the Statement of Claim.
Jurisdiction of the National Court
36. For now, as I have found that there is a dispute over the ownership of Portion 803, the next question I have to decide is; does the National Court have jurisdiction to determine a customary land ownership dispute? In other words, is this Court the right forum for the Plaintiffs to bring their customary land ownership dispute for resolution?
37. In my view, a claim of ownership is an interest in customary land. In this case, based on the evidence and submissions of the Plaintiffs and the Defendants, I have found that the parties are in dispute over Portion 803. The dispute over the ownership of Portion 803 is an interest in customary land. The Plaintiffs’ interest is the land and likewise the Defendants’ interest is the same land.
38. In the National Court Judgment of Her Honour Madam Justice Doherty (as she then was) in Victor Golpak -v- Patrick Alongerea & Others [1993]PNGLR 491, Her Honour heard an application relating to a contract made by the First and Second Defendants with the Fifth and Sixth Defendants over the use of a land as a log pond.
39. The Plaintiff contended that the first four Defendants had no right to make the contract because the subject land is a customary land. It is not an alienated land. Hence, the provisions of Part IX of the Land Act Ch 185 (the old Land Act) would apply to it and any contracts concerning that land would have to be between its traditional owners under custom.
40. The Plaintiff contended that he was entitled to bring the action in the National Court to seek Declaratory Orders and Mandatory Injunctions under section 155 of the Constitution. Her Honour found that there was a dispute between the Plaintiff and the first four Defendants on the customary succession of the land. Her Honour noted that the Plaintiff claimed that he acquired the land by virtue of the matrilineal system prevailing in the area and over the land in question. On the other hand, the first four Defendants claimed that they also acquired a right over the land by virtue of being children of the last occupier.
41. Her Honour further noted that section 3 of the Land Disputes Settlement Act Ch 45 stated that the Act applied to disputes to interest in customary land or as to the position of the boundaries and found that the dispute in that case involved a power to make a contract and was an interest in the land.
42. Accordingly, Her Honour held that the National Court had no jurisdiction to determine the dispute. Her Honour deferred the hearing of the matter and referred the dispute to the Local Land Court for determination.
43. Almost four and half years later, His Honour Mr Justice Sevua followed the decision in Victor Golpark’s case (supra) in Ronny Wabia -v- BP Exploration Operating Co Limited & 2 Others [1998] PNGLR 8 where in that case, the First Defendant had a Petroleum Development Licence and a Pipeline Licence issued by the Third Defendant to operate a petroleum project in the Hides Gas field Project in the Southern Highlands Province. The licences were issued under the old Petroleum Act and all the relevant provisions of the said Act were complied with before the licences were issued and for the project to commence. The grant of or the validity of the licences were not challenged by the Plaintiff.
44. The Plaintiff issued the proceeding in the National Court for compensation for trespass to customary land based on customary right, apart from seeking a Declaration that he is an owner of the land in question and also an Injunction to restrain the First Defendant from remaining or continuing to occupy the land.
45. The First Defendant by Notice of Motion filed on 13 February 1997, sought Orders inter alia to struck out the Plaintiff’s court proceeding or in the alternative for stay of the proceeding and for the Plaintiff to refer the dispute of customary ownership to the Local Land Court for determination under the Land Dispute Settlement Act Ch 45.
46. His Honour noted with interest that the Plaintiff claimed that he was a member of Yandira sub clan of Wita clan but the other members of the Wita Tondo sub clan of Wita clan disputed his claim. His Honour said that if the Plaintiff was a clan member, then he should have been entitled to some compensation. However, if he was not receiving compensation, it can be concluded that he was not a landowner, therefore not entitled to compensation.
47. His Honour held that the question of whether the Plaintiff is or is not a member of the Wita clan is not an issue the National Court could determined for the simple reason that the National Court had no jurisdiction to determine membership or ownership of customary land. His Honour dismissed the Plaintiff’s court proceeding.
48. I find that this present case is no different to that of Victor Golpak’s (supra) and that of Ronny Wabia’s (supra). As I have found above, there is a dispute over the ownership of Portion 803. Whether Portion 803 has been alienated is not relevant here. The fact is that the land was previously a customary land and was subsequently acquired by the State for development purposes. The customary landowners were entitled to be compensated for the acquisition of the land. The National Lands Commission had determined an appropriate sum of money as compensation for the land and the State has already paid the money to the Defendants.
49. Here, I note from the Supplementary Affidavit of Samuel Tamai sworn on 4 December 2007 and filed on 5 December 2007 that the K850,000.00 had been received from the State and distributed amongst the Defendants. There is nothing left to distribute.
50. If the Plaintiffs claim that they are the true customary land owners of Portion 803, then they should take their grievance to the Land Mediators for mediation and if mediation fails, then to the Local Land Court for determination under the general jurisdiction of the Local Land Court under section 26 of the Land Disputes Settlement Act Ch 45. Section 26 states as follows:
" General jurisdiction of Local Land Courts.
Subject to Sections 3 and 4 and to this Part, a Local Land Court has jurisdiction over and in relation to -
(a) a dispute as to an interest in land where the land in dispute is situated wholly or partly within the province for which the Court is established; and
(b) the approval of agreements under Section 19; and
(c) a dispute to which Section 29 applies; and
(d) any other action or decision that it may be required to take under this Act."
51. As I have said above, the question of compensation is dependant on the question of ownership. If the Local Land Court decides that the Plaintiffs are the true customary landowners of Portion 803, then it is for the Plaintiffs to either sue the Defendants for the return of the money or to make another claim to the National Lands Commission for compensation.
52. For now, I am of the view that it is premature for the Plaintiffs to bring this court proceeding against the Defendants especially when the question of ownership of Portion 803 is in issue. It is also reasonable to say that the Plaintiffs’ claim of being true customary landowners of Portion 803 should be decided first before any court action can be filed against the Defendants because once there is a judicial pronouncement as to their title or ownership of Portion 803, it would give the Plaintiffs’ claim for damages more strength and high prospect of success.
53. But for now, I find that the Plaintiffs have rushed straight to this Court to assert their right as original customary landowners of Portion 803 by seeking a Declaratory Order. If the Court grants the Declaratory Order, the next Order they seek is an Order for the Defendants to pay them the sum of K765,000.00. The K765,000.00 is 90% of the K850,000.00 received by the Defendants.
54. Applying section 3 of the Land Disputes Settlement Act Ch 45 and the cases of Victor Golpak’s (supra) and Ronny Wabia’s (supra), I find that this Court has no jurisdiction to determine the ownership dispute of Portion 803. The dispute must be sent back to the Local Land Court to be determined under the provisions of the Land Disputes Settlement Act Ch 45.
Is the proceeding frivolous and vexatious and as being an abuse of process?
55. Flowing on from my finding that this Court has no jurisdiction to determine this customary land dispute over Portion 803, the final question is, whether or not the Court should dismiss the entire court proceeding as being frivolous and vexatious and as being an abuse of process.
56. Here, I note during the course of the hearing of this application, Mr Sino of counsel for the Plaintiffs changed the Plaintiffs’ line of argument from one of a claim of ownership of land to that of a claim for damages. This was after I asked counsel whether the entire court proceeding should be dismissed as being frivolous and vexatious and as being an abuse of process on the basis that the National Court may not have the jurisdiction to determine a customary land ownership dispute.
57. Mr Sino of counsel for the Plaintiff submitted that in the event that the Court is of the view that the dispute over Portion 803 is a matter to be determined under the provisions of the Land Disputes Settlement Act Ch 45, the Court should not dismiss the court proceeding but instead stay the proceeding in accordance with the Court’s power under Order 12 rule 40(1) of the National Court Rules and refer the ownership dispute for determination under the provisions of the Land Disputes Settlement Act Ch 45.
58. He submitted that this is because the Plaintiffs are seeking as one of the relief in paragraph 10(c) of the Statement of Claim endorsed to the Writ of Summons an Order that the Defendants pay K765,000.00 to the Plaintiffs. They claimed that the sum of K765,000.00 should have been paid to them because as customary landowners of Portion 803, they were entitled to received that sum of money.
59. I have carefully perused the pleadings in the Statement of Claim and I note that the Plaintiffs have not pleaded fraud and the particulars of fraud as required by Order 8 rule 30 of the National Court Rules which states, "A party pleading shall give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which he relies". Further, I note that the Plaintiffs have not pleaded with clarity a cause of action based on contract and the particulars of breaches. The question I ask therefore is; have the Plaintiffs pleaded with clarity and with particulars the facts giving rise to a cause of action be it fraud or breach of contract?
60. I am of the view that the Plaintiffs’ pleadings in the Statement of Claim do not clearly set out the particulars of the cause of action, be it fraud or breach of contract. They are also confusing and there is no order in the pleadings. In my view, the common law actions of breach of contract and fraud should be pleaded with clarity and with particularity and also in an orderly fashion. As I said in my own Judgment in the National Superannuation Fund Board Limited -v- Mount Hagen Urban Local Level Government: WS No 1312 of 2007 (Unnumbered and Unreported Judgment of 4 March 2008) on page 12 that: "...... generally the pleadings set the foundation or the basis of the claim, the issues to be decided and the kind of evidence to be led at the interlocutory hearing to support the application for interlocutory Orders or at the trial to support the final reliefs."
61. Then in the National Court Judgment of PNG Forest Products Limited & Another -v- Jack Genia as Minister for Forest & The State [1992] PNGLR 85, His Honour Mr Justice Sheehan (as he then was) had the occasion to discuss the question of whether or not the Court should dismiss the entire court proceeding as being frivolous and vexatious and as being an abuse of process.
62. This is what His Honour after citing Order 12 rule 40 of the National Court Rules said on page 87 of the Judgment:
"Quite apart from this rule, the court also has an inherent jurisdiction to protect itself from abuse of process. Thus, if the court is satisfied that the conditions of this rule have been satisfied, it may struck out that offending action. It can in appropriate cases strike out that offending action. It can in appropriate cases, therefore, 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 history of case law determining what is a ‘reasonable" cause of action or defence and what is "frivolous or vexatious".
63. Applying the above principles to the present case, it appears from the Plaintiffs’ pleadings in the Statement of Claim that the Plaintiffs alleged fraud and also breach of contract. However, in my view, the pleadings are so confusing that it is difficult to ascertain precisely what the cause of action is. They are also not in an orderly fashion.
64. Let me demonstrate for example; the Plaintiffs pleaded in paragraphs 6, 7 and 8 of the Statement of Claim that:
"6. Sometime on or about 2000, unknown to the Plaintiffs, the Defendants namely Samuel Taimai and John Waia (Wai) (Second Defendants herein) and one Philip Num Maipson discretly (sic) lodged a claim with the State through the Lands Department and National Lands Commission for compensation for the States acquisition of the parcel of land described as in Portion 803 forming part of township of Mount Hagen (Kerebug).
7. Some time in 2000, after the claim referred to in paragraph 6 was lodged, the Plaintiffs became aware of the existence of the said claim and enquired with the Defendants as to whether or not their interests was included. The Defendants responded and advised the Plaintiffs:
(a) that the Plaintiffs’ interest as the original customary land owners owning nearby the whole of Portion 803 was acknowledged.
(b) and further that the Plaintiff herein; Tender Wak should not interfere as his involvement in politics will impede the claims chances of success;
(c) and further that the Plaintiffs interest will be taken care of once the claim is settled by the State.
8. On or about April 2000, the State paid the sum of K850,000.00 as compensation for its acquisition of Portion 803 to the Defendants principally the Second Defendants namely Samuel Tamai and John Waia (Wai). The Defendants upon receiving the States compensation payment completely ignored the Plaintiff (sic) interest and made no provisions for the Plaintiffs in that:
(a) The Plaintiffs (sic) interest as the original landowners owning about 90% of Portion 803 was completely ignored and was never taken into consideration when the compensation payment were not paid (sic) any money.
(b) The Defendants breached the agreement and the understanding between the Defendants and the Plaintiffs pleaded under paragraph 7 above.
(c) The Defendants breached a fiduciary duty to all interested parties and acted in bad faith in not making any provisions for the Plaintiffs.
(d) The Defendants (sic) manner and mode of lodgment of the initial (sic) was in total secrecy and was done without any input from the Plaintiffs and without any consideration of the Plaintiffs (sic) interests".
65. I can see that paragraphs 6, 7(a)-(c) and 8(d) seem to allege fraud against the Defendants. Then, again paragraph 7(a)-(c) and paragraph 8(a)-(c) seem to allege a contract between the Plaintiffs and the Defendants and a breach of that contract.
66. If the Plaintiffs are alleging fraud against the Defendants, then I find that they have not pleaded fraud. They have not pleaded the particulars of fraud as required by Order 8 rule 30 of the National Court Rules. If the Plaintiffs are alleging breach of contract against the Defendants, again I find that they have not pleaded breach of contract.
67. I further find that the pleadings are not set out in an orderly fashion and are confusing, not to mention, the so many grammatical and spelling errors. I must say the pleadings are poorly drafted, that is why I am having difficulty in trying to ascertain the cause of action.
68. Whilst I note that the Statement of Claim may have been drafted by a person other than a lawyer, possibly the principal Plaintiff, Mr Wak himself, hence the poor pleadings, I am of the view that as the Plaintiffs have subsequently retained Mr Sino to represent them in this court proceeding, it was incumbent on Mr Sino as a lawyer to correct the defects in the pleadings which I have pointed out above in this ruling before progressing this matter this far.
69. In my view, whilst the Court has a discretionary power to grant leave to the Plaintiffs to amend their pleadings at any time during the course of the proceeding, including at the hearing pursuant to Order 8 rule 50 of the National Court Rules, I do not have the benefit of a draft Amended Statement of Claim placed before me to assist me to decide the application. I consider it necessary to have a draft amended Statement of Claim in this case. I say this because I do not want the Plaintiffs to repeat the defective pleadings if leave is granted. For this reason, I refuse the Plaintiffs’ oral application for leave to amend the pleadings.
70. In any event, whilst I find that the Plaintiffs have failed to properly plead a cause of action and the pleadings are so confusing, I also find that the case should be dismissed for the reasons set out in the case of Ronny Wabia’s (supra) where His Honour Mr Justice Sevua said:
"In my view, the plaintiff should have been advised that he could not come to this Court to claim the remedies he is seeking in his writ of summons, particularly the first, second and third relief. He should have been advised by his counsel or lawyer of the existence and provisions of the Land Dispute Settlement Act, Ch 45; and the Petroleum Act, Ch 198. I consider that the exercise undertaken by the plaintiff in mounting this suit is useless and futile; therefore his suit deserves to be dismissed.
He ought to have been advised that, as a matter of law, questions in relation to ownership or interest in customary land are not for the National Court to determine. Similarly, he ought to have been advised that in respect of claims for compensation over land connected with petroleum exploration, the National Court has no jurisdiction as a matter of law.
71. For all these reasons, I have reached the conclusion that there is no point in allowing the Plaintiffs to proceed on the pleadings in the present state and also to stay the present court proceeding and refer the ownership dispute for determination under the provisions of the Land Disputes Settlement Act Ch 45. In the exercise of the Court’s powers under Order 12 rule 40(1)(b)&(c) of the National Court Rules, I dismiss the entire court proceeding as being frivolous, vexatious and abuse of process.
ORDERS
The Orders of the Court I make are as follows:
1. The Defendants’ Notice of Motion filed on 7 June 2007 is upheld.
2. The Plaintiffs’ entire court proceeding in WS No 818 of 2006 be dismissed forthwith.
3. The customary landownership dispute over Portion 803 is referred for determination under the provisions of the Land Disputes Settlement Act.
4. The Plaintiffs pay the Defendants’ costs of the Application and the entire proceeding.
5. Time for entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.
_______________________________________
Sino & Co Lawyers: Lawyers for the Plaintiffs
Mawa Lawyers: Lawyers for the Defendants
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